Age Case Of "Dirty Old Man" Will Go To A Jury

Constangy, Brooks, Smith & Prophete, LLP
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Constangy, Brooks, Smith & Prophete, LLP

Better not criticize an employee for "robbing the cradle."

Wow.

It sounds like Brett Granet was not a stellar account manager. Shortly after he started work, he allegedly "spoke incoherently" at a client lunch and had to apologize for his behavior. (He said it was his medications.)

Then he accidentally emailed confidential and proprietary pricing information to a major account. According to his boss, it was one of a "string" of errors.

He "made inappropriate comments to a colleague at a professional dinner" and had to send another written apology. With this history, it's not surprising that other employees became concerned when he asked about his access to the office when no one else was there. He also made a poor presentation for which he apologized to his boss by text, inaccurately forecast his expected business, and (allegedly) failed to meet his sales goals. (He says that the goals were exceeded, based on his efforts, shortly after his termination.)

"I think this may have been a bad hire."

Which brings us to the "dirty old man" part. There was a young woman working in the consulting office next door to Mr. Granet's office. Mr. Granet visited the office frequently because someone there had connections with a customer whose business Mr. Granet was trying to get. But the "connection" may not have been the only reason Mr. Granet spent a lot of time at the office next door. One day, about eight months after he'd been hired, Mr. Granet sent the young woman a text on LinkedIn, saying,

"I love chatting with you and I like you. Maybe we could grab dinner sometime or do you think I might be too young for you? :)"

The young woman replied no, and said that he was making her "very uncomfortable." She reported the overture to her HR manager, who told Mr. Granet's employer.

(One request for a date, assuming Mr. Granet did not bother the woman again, would generally not be enough for a sexual harassment claim on her part.)

Mr. Granet's boss called him in and bawled him out. According to Mr. Granet, much of the bawling out pertained to the age difference between Mr. Granet, who was in his mid-50s, and the woman, who was 21. It is undisputed that when the boss reported the situation in an email to HR, he included the age of the woman.

The company decided to let Mr. Granet resign. He was replaced by a 30-year-old, who took over Mr. Granet's only account that generated revenue, plus a few that did not. Mr. Granet's other accounts were distributed among his boss and two other account managers who were in their 50s.

Mr. Granet sued for age discrimination -- even though he was hired at age 54, had a lot of problems on the job, and was "allowed to resign" only about eight months later.

Oh, yeah. And the boss was about the same age as Mr. Granet.

With these facts, it is no surprise that the company moved for summary judgment.

But the judge has decided to let the case go to trial because of the references to the age difference between Mr. Granet and the 21-year-old woman he asked out. According to the court, which seemed generally sympathetic to the employer's position, it appeared that the age difference between Mr. Granet and the woman was what riled up the boss so much. Presumably, if Mr. Granet had hit on a 50-year-old woman instead of a 21-year-old, he would not have been terminated. In other words, this would have been fine?

I really doubt that it would have been fine, if the hypothetical 50-year-old had complained to HR and said that he made her feel uncomfortable. But, anyway, the boss's reference to the age gap will get Mr. Granet a jury trial.

So, employers, here is one more thing to watch out for. According to at least this one court, age gaps cannot be taken into consideration when assessing whether an employee's behavior violates company policies. Exceptions, of course, could apply if one of the individuals is a minor.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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