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Can 'OK, Boomer' Mean Age Discrimination?

Can 'OK, Boomer' Mean Age Discrimination?
By Richard Dahl on January 27, 2020 10:35 AM

Now that the phrase "OK, Boomer" has been uttered by U.S. Supreme Court Chief Justice John Roberts, it's probably safe to say that it's gone mainstream.

As you are probably aware by now, "OK, Boomer" is basically a Gen Z put-down of Baby Boomers — or, at least, the more sanctimonious of Baby Boomers.

The phrase lived and grew online in 2019, but in recent months it's expanded into the real world. In November, a 25-year-old member of the New Zealand Parliament used it to shut up an older member of Parliament who heckled her during a speech she gave on climate change. A few weeks later, climate-change activists rushed onto the field at halftime of the Harvard-Yale football game, chanting the phrase.

It's more than fair to say that young people have a point. Anecdotal evidence suggests that an unduly high percentage of Baby Boomers really are smug, backward-looking jerks.

But not all of them.

And that's where the Chief Justice enters the picture.

On Jan. 15, the Supreme Court heard oral arguments in the case, Babb v. Wilkie, where a federal employee said her boss discriminated against her based on her age. In questioning Babb's attorney, Roman Martinez, Roberts sought to describe a possible exchange that might constitute age discrimination: "The hiring person, who's younger, says, 'OK, Boomer,' once, to the applicant."

He then asked Martinez if he thinks that would be grounds for a lawsuit, and Martinez answered by saying he felt that it did if it were tied to evidence of other age discrimination: "I think if the decisionmakers are sitting around the table and they say, 'We've got candidate A who's 35 and we've got candidate B who's 55 and is a boomer and is probably tired and ... you know, doesn't have a lot of computer skills, I think that absolutely would be actionable."

Risks in the Workplace

The Court is expected to rule in June, so until then we are left to ponder the question on our own: If someone says "OK, Boomer" to you at work, does that mean they've discriminated against you?

For now, the answer appears to be: Maybe, but it depends.

Elizabeth Tippett, an associate professor at the University of Oregon School of Law, strongly recommends that people not use the phrase in a workplace, even if it's not used maliciously. In an article for the academic website The Conversation, which predated the Supreme Court hearing by several weeks, Tippett analyzed what might happen if the phrase gains traction.

"A lot of the internet fights over 'OK boomer' revolve around whether the phrase is offensive or not," she wrote. "But when you're talking about the workplace, offensiveness is not the primary problem. The bigger issue is that the insult is age-related."

And age-related offensiveness can result in lawsuits. The Age Discrimination Employment Act of 1967 prohibits employers from using an employee's age as a factor in determining promotion, compensation and discharges when they are 40 and over.

While an occasional light-hearted "OK, Boomer" might be OK, Tippett says if it can be tied to an ongoing pattern of age-related put-downs, it is not. It could be the final straw.

In an article for Inc. magazine, Suzanne Lucas pointed out that if someone says "OK, Boomer," it's comparable to saying, "OK, Mexican." Slurs against age and ethnicity are both off limits.

Meanwhile, it's worth pointing out that aging Boomers aren't the only ones who are protected by the law. It so happens that even people who are a lot younger than Baby Boomers are covered by the Age Discrimination Employment Act. Nearly all Gen Xers are now covered (the youngest having been born around 1980). And, while it could be shocking news for Millennials, the oldest of them — born in 1981 — will actually start to be covered by the Age Discrimination Employment Act next year.

But the oldest of the Gen Zers, born in 1996, must endure the "snowflake" and "participation trophy" insults without much legal recourse for another 16 years. At least they have one thing to look forward to, however: By then, there won't be too many Boomers left to kick around.

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