Age Discrimination Claims
Discrimination is defined as the power to make fine distinctions. Everyone discriminates every day. People choose to use pens instead of pencils. People avoid anchovies on the pizza. Discrimination is about making distinctions in favor of or against a particular thing.
Certain types of discrimination are unlawful in the Massachusetts workforce. For example, you can discriminate against an employee because you don’t like the color of his tie or shirt. You can’t discriminate against the employee based upon the color of his skin.
There are numerous categories that are protected from discriminatory stereotypes, including but not limited to race, national origin, age, sex, sexual orientation, religious creed and handicap.
This page will briefly discuss a recent case involving age discrimination.
Age discrimination is prohibited by federal law (the ADEA) and state law (MGL c 151B). Most age cases are about disparate treatment, which means that a company is accused of treating a particular person(s) less favorable because of his/her age. Disparate impact cases are less common. These cases focus on whether the company has a policy that has intentionally or unintentionally unfairly affects older workers.
In a disparate treatment case, plaintiff’s attorneys often cite to the McDonnell Douglas case, which sets forth an analytic framework. An employee must set forth a number of factual elements to satisfy a prima facie case, which means that the employee has created an inference of unlawful discrimination. The employee must establish that s/he is (1) over the age of 40, (2) performing the job satisfactorily, (3) subjected to an adverse job action (i.e., termination, demotion, etc.), and (4) had their job duties replaced by someone younger and with similar job qualifications.
The case of Knight v. Avon Products, Inc. dealt a serious blow to employees. There, the employee won a jury trial, but the Supreme Judicial Court overturned the decision by the jury because the plaintiff’s replacement was only 5 years younger. The decision disheartened many plaintiff side advocates because the SJC did not have the opportunity to make credibility assessments; their decision was based solely on the documents.
Deciding 5 years is not enough creates a slippery slope. If 5 years is not enough to support a jury’s determination, is 7 years, or 10 years? Of course the other issue with the SJC decision is that it fails to consider that everyone ages differently.
For example, a company may fire a 64-year-old Saleswoman who has some health issues that do not rise to the level of disability. This employee may have occasionally missed work to address these health issues, but overall continues to provide meet or even exceed expectations. Should the company be allowed to replace this employee with a 60-year-old employee who presents younger? Should the company be allowed to rely on the fact that the younger employee has a better image for its customers? The purpose of the law is to prevent companies from making decisions based upon stereotypes.
If you have concerns regarding a possible discrimination situation, you should consider immediately contacting an employment law attorney to discuss your situation because the statute of limitations is much shorter than many other types of employment claims.
It is worth noting that unlawful discrimination is not limited to the workplace, though this page does not focus on the other areas, which include but are not limited to: public accommodation, housing and mortgage lending.
Whether you are an individual or a small to mid-size company, if you are interested in becoming a P&S client, please contact us through our website or call our main telephone number (617) 357-1888 to schedule a consultation with a member of the P&S legal team.