From Overlawyered posts to SCOTUS hypotheticals

At oral argument yesterday in Babb v. Wilkie, a case on the standard needed to prove age discrimination in federal employment, Chief Justice John Roberts offered a hypothetical of a younger manager who says “OK boomer” to a job applicant. [Mark Sherman, AP] In November, we and others discussed the legal pressure on employers to keep employees from using that phrase. More: William Baldwin, Forbes.


  • Having read news reports of the exchange, I’m not convinced the lawyers on either side answered Justice Roberts’ question. It seems to me, as a non-lawyer, that the answers given (with all that was added after “Boomer”…) are rather weasel-y. SCOTUSBlog gives one exchange as thus:

    “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 — and, you know, doesn’t have a lot of computer skills, I think that absolutely would be actionable,” Martinez says.”

    “Candidate A who’s 35 and we’ve got Candidate B who’s 55” seems actionable on its face, as direct comparison of age in candidates, assuming age has no basis in the job requirements – which must be true for almost every imaginable position.

    “and is a boomer and is probably tired – ” seems actionable as an age-related opinion and negative reference.

    ” and, you know, doesn’t have a lot of computer skills” doesn’t seem actionable, assuming computer skills are needed for the job, and the employer/potential employer has tested the two candidate’s computer skills via the same method, so as to have a means of comparison. Of course, if that’s another baseless assumption, then its a miracle a company so badly run and unskilled at sorting job applicants is big enough to need multiple decision makers in hiring/promoting. Not that such a thing is impossible, I’ve worked for a number of companies with highly incompetent managers and promotion practices.

  • So what if they just said “OK [insert derogatory term] for a minority or a woman?

    • that is the question the Chief Justice asked. Is a single slang (pejorative) enough?

      and the lawyers responded by putting words all around it, instead of a simple yes or no.