“Energy,” “Stamina” and “Dynamic” are not code for age discrimination

Excerpted from a Shawe Rosenthal, LLP Blog by Fiona W. Ong

The U.S. Court of Appeals for the First Circuit rejected claims under the Age Discrimination in Employment Act and state law, finding that the employer’s statement that its ideal candidate would have “energy,” be “dynamic” and possess “stamina” was not evidence of age-based animus under the circumstances.

In Martinez v. Novo Nordisk Inc., as part of a global reorganization, the employer eliminated the 14-person sales staff servicing its Puerto Rico district and created three new positions, for which the sales employees were invited to apply. Two of the employees, aged 48 and 57, who were not selected for the new positions then sued for age discrimination. The trial court threw out the claims, and the employees appealed.

The First Circuit upheld the trial court’s judgment for the employer. First, the First Circuit noted that all three of the successful candidates were age 47, which was only insignificantly younger than the unsuccessful 48-year old employee. Thus, under established caselaw, an inference of age bias could not be drawn.

Although the 57-year old was significantly older than the successful candidates, the First Circuit also rejected his claims, which relied on the employer’s asserted desire for those with “energy” and “stamina” and who would be “dynamic.” The First Circuit acknowledged that there might be cases in which such language could suggest age bias, but not in the current case where three individuals would be responsible for a territory that was previously serviced by 14.

Rather, “it was accurate and relevant to describe the new positions as more demanding.” In addition, none of the interviewers made comments to suggest that the 57-year old lacked these attributes; his non-selection was based on the fact that he offered a weaker plan and lacked probing and engaging skills compared with others.

The First Circuit also rejected the employee’s criticism of the employer’s choice of criteria, noting that “Courts may not sit as super personnel departments, assessing the merits – or even the rationality – of employers’ nondiscriminatory business decisions.”

This case offers support for employers’ ability to identify and apply criteria that they deem relevant to a selection decision – although it is important that such criteria should have some rational basis and connection to the job in question.