Human resources personnel recognize that they are usually not the decision-maker when it comes to employment decisions about other employees – rather, the decision-makers typically are those in the employees’ direct chain of command.  Courts have generally held that inappropriate remarks by non-decision-makers are not direct evidence of discrimination.  As noted by the federal district court in Madigan v Webber Hospital Assoc., however, there may be an exception for HR directors/managers.

In that case, a four-member radiology group was fired from a hospital when the hospital replaced them with another group.  All four members applied for employment with the new group, and three were hired.  The HR director for the new group repeatedly told the final applicant that he was “old” and they wanted “a new face” when informing him that the new group was not going to hire him.  Unsurprisingly, the applicant sued for age discrimination.  The court noted that while the HR director was not the decisionmaker, he was the chosen point of contact by the group for the applicant, and it was certainly possible that his comments accurately reflected the reasons for the group’s decision not to hire the applicant.  A reasonable factfinder could conclude that the HR director knew of the group’s reasons and was speaking for the group when explaining to the applicant why he was not being hired.  In the court’s view, based on the comments, the applicant had an “usually strong” claim of age discrimination.

So the lesson for HR professionals is to watch your words carefully!