Age Discrimination

Age discrimination in the workplace is unlawful under both federal and Massachusetts state law. As Boston age discrimination attorneys, we are well-versed in the complexities that such claims present. Whether through counseling, litigation, or negotiation, we provide victims of age discrimination with a sound strategy for addressing their concerns.  

Under state law, the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B) prohibits employers from taking adverse employment actions against employees who are 40 years old or older. This law applies to employers with at least six employees. Under federal law, the Age Discrimination in Employment Act of 1967 (ADEA) also protects employees who are at least 40 years old, but requires a higher employee threshold: the ADEA applies to employers with at least 20 employees.

Interestingly, not all state statutes are consistent with federal law when it comes to prohibiting age discrimination. The Missouri Human Rights Law, for example, only protects employees who are at least 40 years old but no older than 70 years old and, in some instances, no older than 65 years old. Such a cap may reflect an ageist stereotype that workers beyond a certain age are per se less capable or productive. Such statutes also fail to account for the economic reality that American workers may need to stay in the workforce longer to account for changes in eligibility for Social Security retirement benefits as well as increased healthcare costs.

Adverse employment actions include those that result in financial loss such as termination, refusal to hire, demotion, and denial of job benefits. As numerous courts have held, however, financial loss is not required to show the existence of an adverse employment action. 

We often hear that age discrimination claims are difficult to prove; we strongly disagree with such generalizations. A common refrain from defense counsel, for example, is that the employee lacks direct evidence to prove age discrimination – as if this is a death knell to bringing a successful claim. While direct evidence is certainly helpful, it is also rare and certainly not necessary to prevail on an age discrimination claim. From our experience, and as the Massachusetts Supreme Judicial Court in Blare v. Husky acknowledged long ago, “[b]ecause smoking gun evidence is rare, the plaintiff may, and more often than not must, carry his burden of persuasion with circumstantial evidence.” In quoting Abraham Lincoln, the Ninth Circuit acknowledged that circumstantial evidence can be powerful:

[C]ircumstantial evidence can speak clearly and often unequivocally; properly construed, it is as objective and reliable as any other evidence. As a great trial lawyer once said, “We better know there is a fire whence we see much smoke rising than we could know it by one or two witnesses swearing to it. The witnesses may commit perjury, but the smoke cannot.”

In McDonnell Douglas v. Green, the Supreme Court created a structure for asserting discrimination claims based on circumstantial evidence using a burden-shifting analysis. Under the McDonnell Douglas framework, the employee carries the burden of first establishing a prima facie case of age discrimination by showing that he or she:

1. Is 40 years of age or older,
2. Is qualified to perform the job function required by the position,
3. Suffered an adverse employment action, and
4. Was replaced by someone who is “substantially” younger, or that there exists other evidence showing the termination occurred in circumstances that would raise a reasonable inference of unlawful age discrimination.

Significantly, as the Supreme Court held in O’Connor v. Consolidated Coin Caterers, the fourth element does not require the replacement to be outside of the protected age group. For example, a 55 year old employee still satisfies the fourth element even though his replacement may be 45 years old and also within the protected class. In Knight v. Avon Products, the SJC further defined the fourth element, concluding that “an age disparity of less than five years, by itself, is too insignificant to support a prima facie case of age discrimination.” The SJC also stated that, even if with an age disparity of less than five years, a plaintiff may still satisfy the fourth element by introducing other “evidence to permit the jury to find that age was determinative cause in the termination.”

Once the employee satisfies these elements, it becomes the employer’s burden to allege a legitimate, non-discriminatory reason for taking the adverse employment action. From there, the burden shifts back to the employee to show that the reason is pretextual, which allows a judge or jury to draw a reasonable inference of age discrimination. In our experience, this can be accomplished in several ways, including the use of similarly situated comparators, the employer’s failure to state a consistent reason for the adverse employment action, and the lack of supporting documentation. 

In Reeves v. Sanderson Plumbing, which involved claims of age discrimination under the ADEA, the Supreme Court resolved a conflict among circuit courts. There, the Court found that an employee may prevail at trial where he establishes a prima facie case of age discrimination under the burden-shifting framework and offers sufficient evidence for a reasonable factfinder to doubt the employer’s alleged non-discriminatory explanation for its decision.

Later, much debate followed the Gross v. FBL Financial Services decision, where the Supreme Court interpreted the statutory language under Section 623(a) of the ADEA prohibiting an employer from taking an adverse action against an employee “because of such individual’s age.” In doing so, the Supreme Court concluded:

We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

While many interpreted the Gross decision as severely hampering the ability of age discrimination victims to prevail, subsequent decisions have proved otherwise. In Vélez v. Thermo King de Puerto Rico, for example, the First Circuit acknowledged the Gross decision and still applied the McDonnell Douglas burden-shifting analysis, noting that the Supreme Court “has not definitively decided” and left open the question of whether this evidentiary framework applies in ADEA cases. There, the First Circuit reversed summary judgment granted by the lower court in the employer’s favor, thus allowing the employee’s claims for age discrimination to proceed to trial.

Notably, beyond interpreting the Gross decision, the First Circuit’s ruling is also significant as it held that the employer’s initial failure to provide a reason for the employee’s termination constituted circumstantial evidence of age discrimination:

Thermo King did not initially provide Vélez with any reason for firing him. One month later, Soto told the ADU and the EEOC that Vélez had been fired for violating the company’s policy on receiving gifts from suppliers. It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.

Like Thermo King, other courts have also continued to apply the McDonnell Douglas burden-shifting framework in age discrimination cases under the ADEA. In Jones v. Oklahoma City Public Schools, the Tenth Circuit held that “[a]lthough we recognize that Gross created some uncertainty regarding burden-shifting in the ADEA context, we conclude that it does not preclude our continued application of McDonnell Douglas to ADEA claims.” Similarly, in Yee v. UBS, a federal district court denied the employer summary judgment on an ADEA claim while applying the three part burden-shifting paradigm.

Under Massachusetts and federal law, victims of age discrimination can recover, among other forms of relief, compensatory damages, attorneys’ fees, and costs. In addition, under the ADEA, courts are required to assess liquidated damages in the same amount as compensatory damages if the employer’s violation of the statute was “willful.” Similarly, the Massachusetts Fair Employment Practices Act also contemplates liquidated damages of “up to three, but not less than two times” the amount of compensatory damages where “the act or practice complained of was committed with knowledge, or reason to know, that such act or practice violated” the Act.

As lawyers dedicated to employment law and located in the heart of Boston, we look forward to meeting with you and addressing your age discrimination concerns.  

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