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COMMENTARY:  Cultural Fit – Age Discrimination in the Internet Era

by H. J. Hill, J.D.

May 6, 2009

Cultural fit. Human resource experts throw those words around casually, even gleefully. Hire for cultural fit and your business will be more likely to function efficiently with happier employees who are well-suited to management and your workplace environment.

What is a cultural fit? Essentially, the phrase refers to an employee or applicant who shares the employer's business attitudes, values, goals, and overall view of how the particular business should be run. Every workplace has a style that is reflected in the way its employees act and dress; how they deal with clients, customers, and each other; and how they comport themselves in the larger work world. But can ''cultural fit'' be taken too far in hiring and promotion decisions?

Cultural Fit

Hiring for cultural fit makes sense. After all, who wants to waste time and money recruiting and training a potentially disgruntled employee? We want our businesses to succeed, and job seekers, hoping for a fulfilling career, have no desire to sign on with a company only to find the environment unsuitable, leaving them to spend each day praying that the hours will pass quickly so they can escape and go home. 

But as valid as the goal of cultural fit is, it should never be allowed to double as a cover for discriminatory practices against members of legally protected groups such as older workers.

Old, Slow, and Fuzzy

The California Supreme Court will soon take up review of the appellate court decision in Reid v. Google, Inc., which involves the discharge of Brian Reid, a 54-year-old manager who was deemed not to be a ''cultural fit'' by Google, the well-known Internet search engine developer.  Specifically, the Court will examine whether and to what extent California will apply the so-called ''stray remarks'' doctrine in discrimination cases.

Reid was told by a substantially younger higher-up that he was ''slow,'' ''fuzzy,'' ''sluggish,'' ''lethargic,'' ''obsolete,'' and ''too old to matter.'' On multiple occasions, co-workers referred to him as ''old man,'' ''old guy,'' and ''old fuddy-duddy.'' These comments were made despite the fact that Reid had received a positive review of his work by management.

The offensiveness of the language used toward Reid is not at issue in the case. Rather, the assertion in the lawsuit is that the remarks reveal a discriminatory attitude and that Google fired Reid because its business culture is predisposed against older workers. Statistical evidence introduced in opposition to Google's Motion for Summary Judgment indicated a personnel makeup markedly skewed in favor of youth. Reid further claimed that a ''youthful'' atmosphere was in place that included employee participation in physical activities such as hockey and skiing, again showing a bias against older workers. At his termination, Reid was told twice that he was not a ''cultural fit'' at Google.

Stray Remarks

Google countered with a version of the ''stray remarks'' doctrine, arguing that the statements made to Reid were ''stray'' and not related to the reason for his termination.  The ''stray remarks'' exception permits a court ruling on a summary judgment motion to disregard isolated remarks or comments unrelated to the decision-making process in determining whether or not the evidence of discrimination is sufficient to continue a wrongful termination case.

In Reid,the California Court of Appeals declined to apply the ''stray remarks'' doctrine to the summary judgment evidence presented. Now, the California Supreme Court will review how that doctrine is going to be applied to evidence in discrimination cases.

Whether or not California rejects the ''stray remarks'' doctrine in discrimination cases, the concept of ''cultural fit'' in employment will remain troublesome. Cultural fit is not synonymous with ''comfort zone.'' Seeking to fill positions with people compatible with a company's business standards, values, attitudes, and priorities can be valid, but that legitimate goal cannot be stretched to erect barriers against people with protected legal status. Are there certain business categories where the youth culture is so dominant (video game development, social networking, etc.) that ageism can be justified in the workplace by using the excuse that an older worker is culturally unfit for that business?  Hopefully, the law will continue to reject such distinctions, even in the era of the Internet.

H.J. Hill is a freelance writer based in Texas. She previously practiced in the areas of occupational safety & health, environmental, and commercial real estate law.

References

Reid v. Google, Inc., 66 Cal. Rptr. 3d 744 (Cal. App. 2007), rev. granted 175 P.3d 1170 (Cal. 2008).

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