Chief Justice John Roberts is worried that lowering the bar for proving intent for age discrimination could result in social media memes becoming key indirect evidence of discriminatory intent.
On January 15, 2020 in oral argument, when the plaintiff in Babb v. Wilkie suggested that showing that age was a “motivating factor” in an employment action, rather than showing that it was the determining factor, Justice Roberts suggested that uttering “OK, Boomer” in a joking manner during the application and interview process could support a claim for hiring discrimination based on age. C.J. Roberts worried that loosening the test for age discrimination could result in over-regulation of speech in the workplace.
The Solicitor General argued that employees must prove that they would not have experienced the adverse employment action “but for” age–a much more strict standard and one that is used by many courts.
“OK, Boomer” has become a running joke in the generational divide between Baby Boomers and Millennials and Generation Zs who are entering the workforce in large numbers.