General Laws c. 151B and the
Federal Age Discrimination in Employment Act (ADEA) are the principal focus of
this chapter. These two statutes provide the most powerful tools to remedy a
discriminatory job action. However, it should also be recognized that other
common law or statutory remedies for age discrimination may be applicable. See G.L. c. 93, § 103; Comey v. Hill, 387
An employer may not subject an employee to an adverse employment action because of the employee’s age, if that employee is over 40. 29 U.S.C. §§ 623(a)(1), 631(a); G.L. c. 151B, §§ 1(8), 4(1B). These age discrimination statutes apply to a wide range of employment actions, including:
• termination;
• constructive discharge;
• refusal to hire or promote;
• provision of compensation, benefits or privileges of employment;
• harassment (See Crawford v. Medina General Hosp., 96 F.3d 830, 834 (6th Cir. 1996));
• retaliation against individuals who have opposed age discrimination in the workplace (29 U.S.C. § 623(d); G.L. c. 151B, § 4(4));
• publication of job advertisements indicating any preference or limitation based on age (29 U.S.C. § 623(d); G.L. c. 151B, § 4(3); and
• some inquiries with regard to the age of a job applicant (804 C.M.R. § 3.02).
The general prohibition against age discrimination extends
to certain private employers, governmental entities, labor organizations and employment
agencies. 29 U.S.C. §§ 623(b), (c), 630(b), (c), (d), 633a;
G.L. c. 151B, §§ 4(1C), (2), (3). An important exception is that the
ADEA does not apply to State employers that fail to consent to such suits. Kimel v.
The ADEA applies to private employers in industries
affecting commerce with 20 or more employees. 29 U.S.C. §
630(b) (setting forth test for determining number of employees). General
Laws c. 151B applies to private employers with six or
more employees. G.L. c. 151B, § 1(5). When a
However, there are various exceptions to the general prohibition of age discrimination.
• Bona
fide executives and high policymakers, may be
discriminated against under some circumstances. 29 U.S.C. § 631(c); G.L. c.
151B, § 4(17)(b);
Morrisey v.
• Certain law enforcement officers and firefighters employed by state or local governmental bodies may be discriminated against under some circumstances. 29 U.S.C. § 623(j).
• Distinctions
based on age may be made where age is a bona fide occupational qualification
(BFOQ) reasonably necessary to the normal operation of the particular business.
29 U.S.C. § 623(f)(1); G.L. c. 151B, § 4(1B). However,
this exception is “extremely narrow,” and the burden is on the employer to
present evidence justifying its reliance on the exception. Gately v.
• Distinctions based on reasonable factors other than age are not actionable. 29 U.S.C. § 623(f)(1).
• Certain employees in certain foreign countries may be discriminated against. 29 U.S.C. § 623(f)(1).
• Distinctions based on age may be made with respect to the implementation of certain bona fide seniority systems and employment benefit plans. 29 U.S.C. § 623(f), (i), (l); G.L. c. 151B, § 4(17)(a).
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 must prove that the adverse employment action would not have taken place “but for” his or her age. In further discussing burden of proof, this chapter will focus on wrongful termination claims, as these are the most frequent types of age claims.
There are two principal types of age discrimination claims—disparate treatment and disparate impact. Where an employee asserts that he or she was terminated because of his or her age, the case is considered one of disparate treatment. Where an employee asserts that he or she was terminated due to a facially age-neutral policy that adversely impacts older workers, that case is considered one of disparate impact. Disparate treatment and disparate impact theories may be applied to the same set of facts. The plaintiff’s lawyers should explicitly state in their complaints which theory or theories will be pursued.
The disparate impact theory permits a plaintiff to demonstrate age discrimination with proof that an apparently neutral employment standard disproportionately and negatively affects older workers. Under the current state of the law, it is uncertain whether the disparate impact analysis is applicable to age claims. The First Circuit has held that no disparate impact age discrimination claims are recognized under the ADEA or G.L. c. 151B. Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999), reh'g denied, 171 F.3d 710 (1st Cir. 1999). However, no United States Supreme Court or Massachusetts Appellate Court has ruled decisively on this issue. Assuming that a disparate impact analysis is eventually accepted as an adequate manner of proving age discrimination, the following describes the burden of proof.
The initial prima facie burden in a disparate impact case is on the plaintiff to show that he or she has been harmed by an ostensibly age-neutral employment practice that nevertheless has a significant discriminatory impact. For example, a policy requiring the termination of all employees with more than 25 years experience with the company could constitute a disparate impact case. Moreover, a procedure for laying off employees relying on subjective standards could be challenged in this manner, if the procedure disproportionally affects older workers. Caron v. Scott Paper Co., 834 F. Supp. 33, 39 (D.Me. 1993). Disparate impact may be demonstrated with statistical proof.
The burden then shifts to the employer to demonstrate that
the challenged employment practice has a manifest relationship to the
employment in question. Finally, the burden is back on the plaintiff to
demonstrate either that the employer’s professed rationale for the practice is
pretextual, or that some other practice, without a similarly discriminatory
side-effect, would have served the employer’s legitimate interests equally
well.
A variety of courts seem to have adopted the disparate
impact doctrine for age discrimination claims. See Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d Cir. 1992); Valliere v. Rexam Graphics, Inc., 4
The most commonly asserted kind of age discrimination case arises under the disparate treatment theory. There is a wide range of ways to demonstrate that the reason for a discharge was because of a person’s age. First, there may be direct evidence of age discrimination; for example, a letter from the human resources department stating that the employee’s termination is due to a company policy forcing employees to retire at a certain age.
Where the discriminatory motive for a termination is not stated so bluntly, there are other ways to prove age discrimination via circumstantial evidence. Such circumstantial evidence may include the following:
• evidence that similarly-situated younger workers were treated better than the plaintiff;
• evidence that other older workers were discriminated against;
• evidence that age-discriminatory remarks were made by superiors and decision-makers;
• statistical evidence that age was a factor in the employer’s employment decisions;
• the presence of unnecessary policies that are neutral on their face but that significantly disadvantage older workers; and
• evidence that the employer’s reason for the employee’s termination was pretextual.
The most commonly utilized avenue for proving discrimination with circumstantial evidence follows the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). That analysis requires that the plaintiff first prove a prima facie case of age discrimination. Then the burden shifts to the defendant to produce legitimate, nondiscriminatory reasons for the termination. Finally, the burden returns to the plaintiff to prove that the defendant’s articulated reasons are not the real reasons for the termination, but instead are pretexts for discrimination. These burdens are further described below.
First, the burden is on the plaintiff to prove a prima facie case of age discrimination. The prima facie case is a flexible set of proofs that raise a presumption that age was the reason for an employee’s discharge. The burden is not meant to be onerous. An example of a prima facie case is as follows:
1. the plaintiff was over 40;
2. the plaintiff met the employer’s legitimate job performance expectations;
3. the plaintiff was terminated; and
4. the plaintiff was replaced by a person with roughly equivalent job qualifications.
The fourth element of the prima facie case is subject to
wide variations; it must constitute evidence merely raising an inference that
age discrimination was involved. For example, the requirement could be
satisfied with proof that the job position remained open after the employee’s
termination, and that the employer continued to seek applicants from persons of
the plaintiff’s qualifications. Or, in another version, the plaintiff could
satisfy the burden by proving that his or her replacement was significantly
younger (even if that replacement was over 40 years old). O’Connor v. Consol. Coin Caterers Corp.,
517
Allegations of age discrimination commonly arise from
layoffs, where employees perceive that they were targeted in a reduction in
force (
(b) Defendant’s Articulated Response
After the plaintiff succeeds in proving his or her prima
facie case, the burden is on the Defendant to articulate a legitimate, nondiscriminatory
reason for the termination. The burden requires the defendant to produce
evidence of the reason for the termination.
The defendant’s articulation must be clear and specific, and
not vague. Texas Dep’t
of Community Affairs v. Burdine, 450
The requirement imposed on employers to proffer a supported
and detailed articulated reason is more onerous under Chapter 151B than under
the ADEA. Woods v.
Friction Materials, Inc., 30 F.3d 255, 263 (1st Cir. 1994). This is
an important distinction, since failure of the defendant to satisfy this burden
of production could result in a judgment for the plaintiff. School Committee of
Usually, the employer will satisfy its burden to articulate a legitimate business reason. The articulation rebuts the initial presumption of discrimination, and the burden of proof returns to the plaintiff.
Once the burden of proof returns to the plaintiff, the plaintiff must prove that the reason articulated by defendant is a pretext for discrimination.
A remaining issue of contention is whether proof of pretext
alone will generate an inference of discrimination or whether additional
evidence is required to find discrimination at this third stage. The First Circuit asserts that Federal and
Under Chapter 151B, the plaintiff generates an inference of
discrimination sufficient to prevail at the Rule 56 or Rule 50 stages solely by
demonstrating that the reason advanced by the defendant was a pretext (not the
real reason) for the termination. Abramian
v. President & Fellows of
In contrast, 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. Reeves v. Sanderson Plumbing Products, Inc.,
120 S. Ct. 2097, 2109 (2000); Feliciano
de la Cruz v. El Conquistador Resort, 218 F.3d 1, 9-10 (1st Cir.
2000) (applying Reeves case and holding that "thin" evidence of
pretext does not indicate discrimination as the employer's true motive). In practice, Federal Courts appear extremely
reluctant to find that a prima facie case and proof of pretext alone are
sufficient to overcome summary judgment in particular cases, although the cases
do acknowledge that such evidence can theoretically be sufficient in other
cases. See Fite v. Digital
Equipment Corp., 232 F.3d 3, 7 (1st Cir. 2000); Udo v. Tomes, 54
F.3d 9, 13 (1st Cir. 1995);
In proving pretext, the plaintiff must do more than cast doubt on the appropriateness or wisdom of the employer's articulated reason. Plaintiff may not prevail simply by attacking the employer’s business judgment; rather, the plaintiff must prove that the defendant’s articulated reason was not the real reason for the termination.
Pretext may be proven in a variety of ways. Where it is alleged that an older worker has been terminated for violation of a company rule, pretext may be shown where younger employees violating the same rule were not terminated. Assertions of poor performance can be rebutted by positive performance reviews, or by the fact that no job warnings or criticisms were directed at the plaintiff. Terminations based on patently ridiculous rationales, or on very old or stale job criticisms, may be deemed pretextual. See Molloy v. Blanchard, 115 F.3d 86, 93 (1st Cir. 1997).
Claims that an employee was unqualified may be rebutted by introducing the employer’s job advertisements and postings that list the required qualifications for the job. An employer’s failure to follow standard disciplinary and termination procedures may support a finding of pretext.
The defendant’s failure to articulate the specifics of its
reasons for termination, and its failure to provide records supporting its
decision to terminate may reflect on the credibility of its articulated
reasons.
The fact that a plaintiff was recently hired may indicate an unlikelihood that his or her termination was due to age. The age of the decision-maker might indicate a lack of discriminatory intent. Older workers need not be hired or treated preferentially simply to remedy an imbalance in the employer’s workforce. G.L. c. 151B, §§4(18), 5. Moreover, statistics reflecting an employer’s practice of retaining older workers in a lay off may help demonstrate lack of discriminatory animus.
Workers with the greatest tenure at companies tend to have
the highest salaries and benefits. An employer seeking to rid itself of its
most expensive personnel may appear to be selecting older workers for
termination. However, firing employees simply because they are too expensive is
not necessarily age discrimination. Pagliarini v. General Instrument Corp., 855 F. Supp. 459, 462 (D.
Efforts to minimize expenses may violate other laws. For example, under ERISA, an employer may not fire an employee to prevent pension benefits from vesting. Moreover, firing employees perceived to be vulnerable to sickness to save on health insurance costs may constitute handicap discrimination. These theories, and others, may be used in the alternative, to strengthen an employment discrimination complaint.
Age discrimination and expense reduction often are related. Stereotypes about older workers and the resources they require may dovetail with pressures on managers to pare down expenses. However, it is important for practitioners to frame the issues such that it is clear that recovery is sought for actions based on age-related stereotypes and/or animus, and not simply for expense reduction.
An employer implementing a RIF is under no obligation to demote an older worker and fire a younger worker in order to save the older worker’s job, or to offer the older employee continued employment at a lower salary. See Holt v. Gamewell Corp., 797 F.2d 36, 38 (1st Cir. 1986). Nevertheless, it may be advisable to suggest to employees facing a RIF to volunteer to be demoted or to take a pay cut in order to save their jobs. If the motive of a RIF is to cut costs, an employer’s failure to retain the employee at a reduced cost could indicate pretext for discrimination. See Rivas v. Federacion de Asociaciones Pecuarias, 929 F.2d 814, 823 (1st Cir. 1991) (no evidence of discrimination where in context of RIF, employer offered to retain older works with reduction of salary).
Employers’ offers of early retirement packages, and inquiries regarding when employees will retire, raise various issues under the discrimination statutes. The existence of a voluntary retirement program does not, by itself, indicate age discrimination. Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 255 (1st Cir. 1986). However, offering a retirement package for the purpose of getting rid of older employees may constitute evidence of discrimination. Olivera v. Nestle Puerto Rico, Inc., 922 F.2d 43, 49 (1st Cir. 1990) (where the goal of offering the retirement package was to “flatten” the organization in terms of age).
Where an employer seeks releases in connection with exit incentives or other employment termination programs offered to a group of employees, the employer is required to furnish the affected employees information on the ages and job titles of those employees affected. 29 U.S.C. § 626(f)(1)(H). This requirement enables employees to determine whether age discrimination was a factor in their terminations or exit incentives.
The fact that a minimum age is set for attainment of retirement benefits is not a violation of the ADEA. 29 U.S.C. § 623(l). Reasonable inquiries relating to when and if an employee is planning to retire are not discriminatory. However, constant, harassing demands that an employee accept a retirement package and inquiries about an employee’s age may indicate an employer’s view that individuals of a certain age should no longer be working.
The ADEA permits all legal and equitable remedies as may be appropriate to effectuate the purposes of the act, including without limitation:
• injunctive relief;
• lost wages and benefits (the doctrine of mitigation of damages applies; plaintiff’s attorneys should advise clients to aggressively seek other employment after termination, and to document their job search);
• front pay and future pension benefits. Front pay is lost pay for the period from the date of judgment into the future. To bolster front pay claims, plaintiffs may request to be reinstated by the employer, and should request this type of relief in their complaint;
• promotion;
• interest;
• “liquidated damages” (punitive damages that double the amount of monetary damages) may be recovered in cases of willful violations of the ADEA, 29 U.S.C. §§ 216(b), 626(b). A violation is ‘willful’ if the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA. While liquidated damages are punitive in nature, the plaintiff need not show that the employer’s conduct was outrageous, Hazen Paper Co. v. Biggins, 507 U.S. at 614–18; and
• attorney fees and costs.
See 29 U.S.C. §§ 216(b), 626(b).
Despite the express provision of legal remedies, the ADEA has been interpreted to preclude the award of damages for emotional distress. Vazquez v. Eastern Air Lines, Inc., 579 F.2d 107 (1st Cir. 1978).
Chapter 151B provides similar remedies and damages as the ADEA, with some important differences. First, emotional distress damages may be awarded under Chapter 151B, while they are probably not awardable under the ADEA. Second, a Chapter 151B plaintiff who pursues a civil action may be entitled to multiplied damages of up to three times actual damages upon a showing of willful violation. In contrast, the ADEA provides for only a doubling of damages. Third, the prejudgment interest often awarded in Chapter 151B actions, currently at 12 percent, is higher than the interest rate that could be assessed in federal court under the ADEA.
Individuals seeking to recover under the ADEA or Chapter 151B must file a timely administrative complaint. The deadline for filing an administrative complaint under Chapter 151B is six months. G.L. c. 151B, § 5. The charge should be filed with the Massachusetts Commission Against Discrimination (MCAD).
In a deferral jurisdiction such as
Special rules govern the initiation of claims involving federal employees. Such employees should notify an EEO counselor within 45 days of the discrimination. 29 C.F.R. § 1614.105(a).
There are many complicated issues relating to the limitations period in discrimination cases that are beyond the scope of this chapter. However, a few general rules should be noted. The limitations period begins to run on the date when the employee is given final notice of a discriminatory job action; the period does not necessarily run from the date when the job action actually occurs. Moreover, even after an employee has been terminated or has been informed of his or her termination, the limitations clock may be restarted when the employee first discovers or first has reason to discover that his or her discharge was discriminatory. Doctrines of continuing violations, equitable tolling and waiver may also affect the limitations period.
The discrimination charge should be reasonably detailed. The scope of the charge should cover all potential bases for recovery. It is important to list all the individuals or entities that the employee intends to sue as “respondents.” Failure to file a timely and sufficiently detailed complaint could preclude recovery both at the MCAD and in court.
(a) Removing Charge from the MCAD
A plaintiff seeking to file a civil action under Chapter 151B should remove the pending case from the MCAD. The plaintiff may remove his or her claim from the MCAD after 90 days have elapsed since the charge was filed (and earlier if the MCAD permits). G.L. c. 151B, § 9. Removal is accomplished simply by writing to the MCAD, informing it that a civil action has been filed, and asking it to dismiss the charge so that the complainant may pursue a civil action. The MCAD charge will be dismissed without prejudice to the civil action, but the complainant will be barred from reasserting the same action at the MCAD. The burden falls on the plaintiff to file a timely complaint in Superior Court.
In cases that are no longer pending at the MCAD (for example, where a charge has been dismissed pursuant to a finding of lack of jurisdiction, or lack of probable cause), a plaintiff may still file a civil action. A similar letter of removal should be sent to the MCAD if such a suit is initiated.
If the MCAD dismisses a charge via a final decision, after a Public Hearing, the plaintiff loses the right to initiate a de novo civil action. After the issuance of a post–Public Hearing order, both the plaintiff and defendant may seek judicial review. G.L. c. 151B, § 6.
The defendant is powerless to remove the complaint from the
MCAD prior to the MCAD’s final order resulting from the Public Hearing and
subsequent appeal within the MCAD. However, a private employer against whom
legal damages are sought may preserve its right to have the case heard before a
jury by submitting a timely reservation of a right to a jury trial. Once such a reservation of right is entered,
it is possible that the Complainant will voluntarily remove the case, or the
MCAD may dismiss the case, to prevent the likely necessity to litigate the case
twice. Lavelle v. MCAD, 426
(b) Limitations Period for Filing Chapter 151B Civil Action
The Plaintiff’s deadline for filing a civil action under Chapter 151B is three years from the date of the discriminatory conduct. G.L. c. 151B, § 9. The period in which the claim was pending at the MCAD does not toll the deadline for filing a civil action. The deadline for the defendant to file a civil action for a de novo jury trial after the MCAD’s post–Public Hearing order is uncertain.
Under the ADEA, a civil action may be filed when 60 days has elapsed after the filing of the EEOC complaint. 29 U.S.C. § 626(d). Moreover, plaintiffs should wait at least 60 days after their age discrimination charge has been filed with the MCAD before bringing a civil action under the ADEA. 29 U.S.C. § 633(b).
Practice Note
Plaintiffs forgetting to file an ADEA charge with the MCAD may file one after the civil action has commenced, even if the Chapter 151B limitations period has run. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 759-60 (1979); Bousquet v. PolyForm Corp., 401 Mass. at 1002–03, 515 N.E.2d at 1188–89; Ciccone v. Textron, Inc., 651 F.2d 1, 1–2 (1st Cir. 1981); Clark v. American Home Foods Div., 34 FEP 813, 814 (D. Mass. 1982).
(b) Limitations Period for Filing an ADEA Civil Action
An ADEA civil action must be filed within 90 days after the EEOC informs the claimant that the claim has been dismissed or that the proceedings have been terminated. 29 U.S.C. § 626(e). Time limitations for suits against the federal government are governed by 29 U.S.C. § 633a(d).
There are many considerations to keep in mind when deciding
whether to remain at the MCAD or to pursue a civil action. To the extent that
an employee is awarded legal damages at the MCAD, a private employer may have
the right to a de novo jury trial in Superior Court. Lavelle v. MCAD, 426
Enormous backlogs in motion practice and scheduling hearings continue to be a problem at the MCAD.
When all parties to an MCAD charge are represented by counsel, the parties are generally permitted to take discovery almost immediately at the MCAD. 804 CMR 1.13(7). Thus, the MCAD may be a convenient venue to perform some investigation prior to committing to a civil action.
Multiple damages are not awarded in the MCAD; they are awarded only if a civil action is pursued. In addition, if a civil action is filed, the plaintiff secures the right to a jury trial. 29 U.S.C. § 626(c)(2); G.L. c. 151B, § 9.
On the other hand, the MCAD currently does not honor contracts for mandatory arbitration, and may be a better alternative in cases where the defendant-employer may seek to require arbitration. MCAD Policy 96-1(I)(1)(d). At the MCAD, pro se complainants are provided the opportunity to receive free legal guidance. Finally, the MCAD may prove to be a better forum where a case turns on a very technical interpretation of law; it may be better in some cases to have discrimination law experts deciding a case rather than a jury.
Assuming that a civil action is filed, the next question is whether to pursue a Chapter 151B claim, an ADEA claim, or both. Generally, Chapter 151B provides plaintiffs with many benefits over the ADEA. Chapter 151B covers a wider group of private employers, provides for greater damages and provides for less onerous burdens of proof. While Chapter 151B and the ADEA may be asserted together in a complaint, asserting Chapter 151B claims alone may facilitate the opportunity to pursue the case in Superior Court without the risk of removal to federal court. Many think that the federal court is hostile to employment discrimination claims.
Individuals such as harassers or managers initiating discriminatory job actions may be sued in their individual capacities under G.L. c. 151B. It is, however, unclear whether individual liability will be found under the ADEA. Suarez v. Pueblo International, Inc., 229 F.3d 49 (1st Cir. 2000).
However, asserting an ADEA claim may obviate the very small
risk that
Waivers of statutory rights under the ADEA are governed by the provisions of the Older Workers Benefit Protection Act (OWBPA). 29 U.S.C. § 626(f). The OWBPA requires that waivers of ADEA rights be knowing and voluntary, and it provides a checklist of what factors should be present to satisfy that requirement.
The OWBPA states that:
(f)(1) An individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary. . . . a waiver may not be considered knowing and voluntary unless at a minimum—
(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
(B) the waiver specifically refers to rights or claims arising under this Act;
(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;
(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual is already entitled;
(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;
(F)(i) the individual is given a period of at least 21 days within which to consider the agreement [or 45 days under some circumstances].
(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired.
(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees [the employer must inform the employee of the ages and job titles of those who are and are not selected].
29 U.S.C. § 626; see also 29 U.S.C. § 1625.22 et seq.
Although some of these requirements may be formally
inapplicable where parties are resolving a civil action (29 U.S.C. § 626(f)(2)), the safest policy is to always comply with all the
OWBPA requirements when drafting an ADEA release. It is possible that an
employee who signs a non-compliant release may nevertheless sue the employer, and
keep the money that was paid to her for signing the release. See
Oubre v. Energy Operations, Inc., 118
Attorneys representing clients of ages forty and over should work hard to remain aware of developments in age discrimination laws. Given the numerous technical requirements and relatively short statute of limitations, it is important to identify and quickly address such issues when they arise. For lawyers that represent employees in this complex area, continuing education further increases the ability to procure a satisfying array of remedies for clients.