Here Comes the Boom

A movie in high circulation on cable right now is ‘The Intern.’ The film stars Robert De Niro as Ben Whitaker, a retired 70-year-old widower who is bored with retirement. He applies to a be a senior intern at an online fashion retailer and gets the position. Jules Ostin, the founder of the company, played by Anne Hathaway, is a demanding, workaholic boss.

It’s a classic fish-out-of-water story as Ben tries to fit into the epitome of a millennial-friendly company, such as when the company masseuse gives him his first massage. But it’s Hollywood, so of course, Ben wins everyone over and ends up becoming Jules’ most valuable and trusted employee.

The generation gap between millennials and baby boomers exists in real life workplaces, and the differences between them doesn’t always result in a happy ending.

For example, the phrase “OK, boomer” has apparently become a trendy comeback that millennials use to respond to baby boomers that are sharing views younger people generally view as out of date. Last month, a New Zealand lawmaker used the phrase in response to a more senior legislator who opposed her views about climate change.

While it’s certainly not polite, saying “OK, boomer” at work may have bigger implications than being simply an ageist slight – it could violate the law.

The Age Discrimination in Employment Act is a federal statute that prohibits harassment and discrimination against employees aged 40 and older. The Act was passed to prevent the firing or laying off of experienced workers who have been employed for a long time, and as a result have high wages, lots of vacation or other benefits, and possibly more costly health insurance, in favor of younger, cheaper employees.

Because “OK, boomer” is entirely age-related, it could constitute harassment in the workplace. So if comments like “OK, boomer” or similar age-based comments are prevalent and tolerated in the workplace, older employees could have a claim, especially if they are passed up for a promotion by a younger, less qualified candidate.

While it may seem farfetched, one of the most famous age-discrimination cases that went all the way to the U.S. Supreme Court involved a manager who described an employee as “so old he must have come over on the Mayflower.” Roger Reeves sued his employer, toilet seat manufacturer Sanderson Plumbing Products, Inc., after he was fired. Sanderson said he was underperforming, but 57-year-old Reeves asserted age discrimination. He cited ageist comments like the Mayflower one and that he was “too damn old to do the job,” plus the fact that he was replaced by someone in his 30s.

Millennials probably feel this is hypocritical because many baby boomers refer to them as “snowflakes.” The moniker stems from the belief that they’re too delicate for the real world because you don’t get a participation trophy just for showing up at work. Some millennials may be in luck, however.

A few states, including Michigan, Minnesota, New Jersey, Oregon and New York, have laws that guard against discrimination for anyone over 18. The laws protect younger people from being discriminated against for things like housing or extending credit. So in one of these states, calling millennials “snowflakes” could land baby boomers in just as much hot water.

As a Generation X-er, I have no dog in the fight between baby boomers and millennials, so I was feeling pretty good. That is, until I remembered that under the ADEA, employees over the age of 40 are considered old.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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