Courts sometimes get confused about who in the court system is supposed to decide whether an adverse employment decision was taken because of the employee’s protected class (age, race, gender, etc). That decision belongs to a jury. Let’s say that again because it is something that has been increasingly forgotten by some judges: That decision belongs to a jury.

Wilson v. Cox, No. 12-5070 (D.C. Cir. June 3, 2014) shows that some courts of appeals are starting to push back on this trend.  In Wilson, the Court makes the point that even if the employer might have had a very good and non-discriminatory reason for eliminating a position, when the principal decision maker also makes a statement to the terminated employee that “you didn’t come here to work, you came here to retire,” that comment, standing alone, is enough to require a jury – not the judge – to determine whether the termination was due to age discrimination or not.  The Court explained:

“While Cox in that statement expressed a general concern about a perceived tendency of older guards to fall asleep, he testified that he had heard about only one such incident. Additionally, the chief of resident services testified that he had never heard any reports about any guard sleeping on the job. Even if Cox in fact knew of one instance in which a guard fell asleep on the job, a statement indicating a generalized concern about older guards as a group, based on one incident alone, is suggestive of impermissible, inaccurate stereotyping. A reasonable factfinder could conclude that Cox attributed sleepiness to all older guards as a class and terminated the resident employee program on that discriminatory basis.”

Does this mean the plaintiff employee will necessarily win at trial? Nope. That’s not the point. The point is that a jury needs to hear the case and decide the facts, not the judge.