In January, Supreme Court Chief Justice John Roberts drew considerable media attention by asking, during the oral argument of an age discrimination case, Babb v. Wilkie, a question about the relevance of the phrase “OK, Boomer.” A Google search of “Chief Justice OK Boomer” will reveal articles from almost every serious media outlet putting their spin on the remark. Most commentators have portrayed the conservative Chief Justice as suggesting it would be silly to take today’s trendy phrase from popular culture and conclude it could be evidence of age discrimination.
But, that’s not exactly what happened. Instead, the question that garnered all the attention was way down in the legal weeds, far beyond our time and space and interest here. Suffice it to say that the Chief Justice’s wondering dealt with a series of hypotheticals and “what-ifs” posed by the Court around questions of the burden of proof for federal employees under statutory language that is different than the language of the Age Discrimination in Employment Act that applies to private (or state and local governmental) employees.
The larger point was that “OK, Boomer” can be like any other ageist comment. And Chief Justice Roberts was asking the question all HR professionals and attorneys and, sometimes juries, must answer—when a comment reveals stereotyping based on membership in a protected category, is it evidence of bias or is it merely a “stray” remark that had no impact on an employment decision and no tendency to harass?
Can enough “OK, Boomer” remarks create a hostile work environment? What about a comment by a hiring manager in an interview—would that prove bias in denying the applicant a job?
As attorneys often say, because it is true, “it depends.” But the greater point, and the reminder worth taking from the Supreme Court argument, is that the answer to those questions can certainly be YES, given the right accompanying facts. Even casual statements meant to tease but not to harm can be evidence of harassment or bias. Millennials might think they have a point about older employees being judgmental and condescending, but men used to think they had a point about women being emotional and insecure. Wrong. Think of the pejorative statements uttered to women and minorities over decades, based on stereotypes, intended by the speaker to be merely joking, but heard by the listener as hurtful and judgmental—those are exactly the kinds of comments that employment discrimination laws are meant to root out of the workplace.
True, HR managers sometimes need to pick their battles, and policing speech that enters the culture and exits just as quickly might not be priority one. Surely, an older employee’s best reply to “OK, Boomer” is not to run complain to HR.
At the same time, if unchecked, this comment is like any other that singles out an employee’s protected trait, and it carries the added layer of conveying a level of dissatisfaction with someone due to his or her association with others of the same protected group. As with most things HR, the best advice is common sense: snarky is bad for employee relations, lumping someone into group stereotypes never helps, and jokes land wrong when they are built on making fun of people.
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