Late Night Discrimination

In our continuing effort to draw employment lessons from the current political scene, we enlist the help of the late night funny guys.

David Letterman on John McCain:  “John McCain looks like the guy who brags that his new denture adhesive allows him to eat corn on the cob.”

Jay Leno on John McCain:  “Do you realize when Castro came to power in 1959, John McCain was 61 years old?”

Conan O’Brien on John McCain:  “McCain has unveiled a new campaign slogan:  ’Ready to lead America into the 21st century.’  And that’s a lot better than his old slogan: ‘I’ve been around since the 19th century.’”

And these are the mild ones.

Should you tell these jokes at work?  I’d be careful if I were you.  If you get sued for age discrimination, you can rest assured  these jokes will be used against you.  Which brings us to the latest lesson.

It’s easier to get away with age discrimination than race and gender discrimination.  Or, perhaps more accurately said, it’s easier to get away with language that’s ageist than it is to get away with language that’s racist or sexist. Can you imagine Letterman or Leno or O’Brien telling an Obama joke with a not-so-subtle racial edge to it?  Can you imagine them telling a Hillary joke with a not-so-subtle gender edge to it?  Sure, you can imagine it, and then you can imagine the fallout.  Calls for their resignations, their firings.  Apologies for being insensitive.  The three of them could probably survive, depending on the exact wording and tone of the jokes, but their attempts at humor would be quickly converted into vitriol at its best.

As far as employment law is concerned, there’s no difference among these three categories.  All three are protected classes, and it’s unlawful to discriminate against an employee because of his/her race, gender or age.  The truth is that, as a practical matter, age has always been a lesser protected class, at least in some respects.  In most workplaces, the use of a racial epithet will have swift, perhaps permanent consequences.  Language demeaning to women will be treated in a similar fashion.  Not so with age language.  Ask someone to explain the difference, and you’ll get some kind of gobbledegook.

This may be changing, however.  An enormous group of older baby boomers make up a significant segment of the workforce.  As I’ve predicted, this demographic fact will lead to an increasing number of age discrimination charges and lawsuits during the next five to ten years.  So watch what you say about the old people.  Maybe Letterman, Leno and O’Brien can continue to get away with it, but you won’t be able to.