Direct Evidence of Age Discrimination: Not as Obvious as You Think

Most of the age discrimination cases I defend on behalf of companies are of the indirect evidence variety. Rarely do I come across a direct evidence case. But it appears that courts are expanding direct evidence of age discrimination into areas historically occupied by indirect evidence.

In Missouri, a septuagenarian alleged he was fired because of his age and he had direct evidence to prove it: his supervisor told him to “hang up his Superman cape.” This, my friends, is a prima facie case of age discrimination.

Also included in what not to call people over 40: ancient, old school, set in his ways, not a proper fit for the new environment, lacking in energy, not being up to date, sounds old on the telephone, is like a bag of bones, a little long in the tooth, and you mean they had cars when you started to work here?

I try to be as sensitive as the next person when it comes to protected classes of employees. But I disagree: telling an employee to hang up his Superman cape is not direct evidence of age discrimination. In the right context it may hint at indirect evidence, but to call it direct evidence falls far outside the spirit of the law.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at