Age Discrimination

Procedural Requirements

The federal Age Discrimination in Employment Act of 1967, as amended (ADEA), prohibits discrimination based on age (40 and over) and applies to all employers with 20 or more employees. The Massachusetts Fair Employment Practices Law, M.G.L. c. 151B applies to employers with __ employees or more. After 90 days from date of filing with the Massachusetts Commission Against Discrimination (MCAD), the MCAD complaint may be withdrawn and a civil action filed in federal court under the ADEA and Massachusetts Fair Employment Practices Law, M.G.L. c. 151B.

Under the ADEA, a plaintiff may seek compensatory damages, (including back pay, front pay, pain and suffering, emotional damages and attorney fees) as well as punitive damages to those employees who prove intentional discrimination. Federal law places caps on both compensatory and punitive damages, based on the size of the employer.

Disparate Impact vs. Disparate Treatment Under The ADEA

In an ADEA suit, the plaintiff-employee’s ultimate burden of proof is to demonstrate that he or she was subjected to an adverse employment action because of his or her age. The employee retains the burden or persuasion to prove by a preponderance of the evidence that the adverse employment action would not have taken place “but for” his or her age. The employee may use direct or circumstantial evidence.

Disparate Impact Cases

Under federal statutes analogous to the ADEA, such as the Americans with Disabilities Act, a plaintiff may pursue a discrimination claim on one of two different tracks, or both: disparate impact and disparate treatment. In a disparate impact case, the employee-plaintiff must demonstrate discrimination with proof that an apparently neutral employment practice of the employer has disproportionately and negatively affected older workers within the company. A procedure for refusing to promote employees that relies on subjective standards, such as the possession of ‘soft skills,’ could be challenged on the basis of disparate impact, as could a more formalized interview process utilized by the employer,(or, more specifically, any of its specific components) if either procedure disproportionately affected older workers at the company.

The plaintiff usually must identify a common, discriminatory link between her treatment and other “older” workers in the procedures for hiring and promotion by the employer. The benefit to a plaintiff of a disparate impact claim is that, where an employer asserts its reliance upon reasonable factors other than age as an affirmative defense to liability, it bears both the burden of production and the burden of persuasion in asserting this defense.

Disparate Treatment

The most commonly asserted kind of age discrimination arises under the disparate treatment theory. Unlike a disparate impact claim, which is often directed toward corporate-wide policies or practices affecting numerous employees, disparate treatment claims tend to be used when an individual employee believes he or she was targeted and treated adversely because of his or her age. The burden of persuasion does not shift to the employer to show that it would have taken its action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Therefore, the plaintiff in a disparate treatment action must first make out a prima facie case of age discrimination, and then produce evidence that whatever motivations articulated by the defendant are really pretexts for discrimination. In certain cases, the plaintiff may have to prove not only pretext, but intentional discrimination on the part of the defendant (see below).

The general framework of a prima facie case of discrimination consists of four elements that must be demonstrated by the plaintiff:

  1. The plaintiff is a member of the appropriate protected class (in this case, age 40+)
  2. The plaintiff met the employer’s legitimate job performance expectations
  3. The plaintiff was either terminated, not hired, or otherwise suffered from an adverse employment decision
  4. The plaintiff was replaced by a person who was five or more years younger.

Once the plaintiff has made out a prima facie case for disparate treatment under the ADA, the employer would carry the burden of production in articulating a clear and specific, non-discriminatory reason for the employment action adverse to the plaintiff (e.g., failure to hire, failure to promote, or termination of employment).

Proof of Pretext: Burden of Proof

The burden of persuasion never leaves the plaintiff in a disparate treatment claim under the ADEA. Thus, the employee-plaintiff would have to present evidence showing that the motivations offered by the employer – (say, for example, the necessity of employee relocation or a lack of certain specific skills) – were merely pretexts for the “real” reason – a bias against older workers. The demonstration of pretext is the pivotal element of any ADEA claim; this is also where federal case law is most in flux. The issue of contention today is whether proof of pretext alone will generate an inference of discrimination sufficient to survive a motion for summary judgment. The federal First Circuit court has indicated that the law in Massachusetts under the FEPL regarding proof of pretext is perhaps more liberal than federal law.1

Under the ADEA, proof of a prima facie case and proof of pretext alone may, but will not necessarily, generate an inference of discrimination sufficient to withstand a summary judgment motion. A jury is not compelled to find for a plaintiff under such circumstances. The Supreme Court and First Circuit have both stressed that a plaintiff will not always be entitled to a finding of discrimination after establishing a prima facie case and evidence of pretext.2 For example, additional evidence might conclusively show another, nondiscriminatory reason for the employer’s conduct, even if the falsity of another reason is proven. But when a plaintiff shows evidence of differential treatment and pretext, “if the disparity in treatment is striking enough, a jury may infer that [age] was the cause, especially if no explanation is offered other than the reason rejected as pretextual.” 3

In short, the employee-plaintiff is allowed to present to any Superior Court jury, through direct or circumstantial evidence, his case that her employer put forth wholly false reasons for failing to promote her in order to conceal their intention of demoting or terminating her because they felt she was too old for the image they wanted. Case law indicates that, in order to do so, the plaintiff-employee should focus comparing her treatment only to those employees similarly situated in all relevant aspects.4

Affirmative Defenses

Five affirmative defenses to disparate impact and treatment claims are listed in the ADEA statute. A “reasonable factor other than age” is the broadest of the ADEA defenses, and should be thought of more as the failure of the plaintiff to establish the pretext or non-uniformity in the employer’s behavior.5 In other words, the employee-plaintiff should be prepared to disprove all possible justifications for her treatment from the employer, not just one.

A “reasonable factor” may range from anything to a neutral, merit-based reduction in force to uniformly applied performance evaluations to any traditionally recognized basis for ‘good cause’ termination. As stated above, the example of a relocation requirement for a particular position appears on its face to constitute a reasonable factor other than age – but this must be applied to every applicant. The example of a ‘soft skills’ justification offered by an employer is much weaker, and will require the employer to justify its definition of “soft skills” and how the plaintiff-employee was deficient in this area.

A second common defense asserted by defendant-employers is that age was a necessary justification for its treatment of the employee. The ADEA exempts age-based employment decisions when age is a “bona fide occupational disqualification reasonable and necessary to the normal operation of the particular business.”6 Hard evidence such as expert testimony and studies are generally necessary to support the defense.

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1 Joyal v. Hasbro, Inc., 380 F.3d 14, 17 (1st. Cir. 2004); Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107 (2000).
2 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000); Feliciano de la Cruz v. El Conquistador Resort, 218 F.3d 1 (1st Cir. 2000).
3 Ricci v. DeStefano, 129 S.Ct. 2658 (2009)
4 For example, in one First Circuit case, a female professor asserted a Title VII claim, stating that another male professor with a similar publishing record was granted a raise, while she did not. The Court countered that the male professor’s evaluation was not relevant because he was on a “non-scholarly track” and therefore not in a position comparable to the plaintiff’s job. The Court agreed, finding that under the theory of differential treatment, the employee failed to established pretext in light of a material difference between the two positions held by the male and female professors.
5 29 U.S.C. §623(f)(1).