AGE DISCRIMINATION IN EMPLOYMENT

ROBERT S. MANTELL, ESQ.

Rodgers, Powers & Schwartz, Boston

Updated As of April 4, 2011

 

I.          INTRODUCTION


Massachusetts and federal statutes prohibit age discrimination in employment. Age discrimination practice requires attorneys to address a daunting array of legal and procedural issues. However, the possibility of expansive damages, including back pay, front pay, lost pension benefits, multiplied damages, attorney fees and emotional distress damages, makes it a potentially lucrative area of practice. This chapter will introduce lawyers to the field of age discrimination law. While the chapter does not attempt to cover the entire range of age discrimination law comprehensively, it does address a variety of issues that often arise.
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, e.g., G.L. c. 93, § 103; G.L. c. 31, § 1; G.L. c. 149, § 24A; 5 U.S.C. § 2301(b)(2); Comey v. Hill, 387 Mass. 11, 20 (1982) (tort claims may be brought based on age discrimination).


II.         THE GENERAL PROHIBITION AGAINST AGE DISCRIMINATION

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). This prohibition prevents an employer from preferring a younger employee to an older employee based on the employees’ ages. However, it is clear, at least under the ADEA, that an employer is free to favor older employees over younger employees based on their ages. General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004).
The statutes prohibit discrimination in a wide range of adverse actions, including

  • termination;
  • constructive discharge;
  • refusal to hire or promote;
  • provision of compensation, benefits or privileges of employment;
  • reassignment (see Burlington Northern and Santa Fe Railway Co. v. White, 126 S. Ct. 2405, 2416–17 (2006));
  • suspension, even if it is later withdrawn (see Burlington Northern and Santa Fe Railway Co. v. White, 126 S. Ct. 2405, 2417–18 (2006));
  • harassment (see Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008));
  • segregatation or limitation (29 U.S.C. § 623(a)(2)).
  • retaliation against individuals who have opposed age discrimination in the workplace (29 U.S.C. § 623(d); G.L. c. 151B, § 4(4)); see Gomez-Perez v. Potter, 128 S. Ct. 1931, 1936-40 (2008) (recognizing ADEA retaliation claim for federal employees); Burlington Northern, 548 U.S., at 67 (Title VII anti-retaliation provision extends to reprisals taking place outside the workplace);
  • 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 which fail to consent to such suits. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). However, the right to sue the Commonwealth remains under G.L. c. 151B.
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 Massachusetts employer with fewer than six employees engages in age discrimination, G.L. c. 93, § 103, may provide a remedy. Section 103 provides that elderly and handicapped persons have the same rights as other persons “to make and enforce contracts, inherit, purchase, lease, sell, hold and convey real estate and personal property, sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property.” G.L. c. 93, § 103(a).
Federal employees may sue under the ADEA, but not under Chapter 151B. Rossiter v. Potter, 257 F. Supp. 2d 440, 442 (D. Mass. 2003), rev’d on other grounds, 357 F.3d 26 (1st Cir. 2004).  The ADEA prohibition against age discrimination against federal employees, that all personnel actions must be “free from any discrimination based on age,” appears to be broader than ADEA protections for private employees. Compare 29 U.S.C. § 633a(a), with 29 U.S.C. § 623(a)(1).
Individuals such as harassers or managers initiating discriminatory job actions may be sued in their individual capacities under G.L. c. 151B. Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480 (2000); G.L. c. 151B, §§ 4(4A), 4(5). It is unsettled whether there is individual liability under the ADEA, but such a result is unlikely. Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 56 n.6 (1st Cir. 2000).


III.       LIMITS TO THE PROHIBITION ON DISCRIMINATION

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. Boston Five Cents Sav. Bank, 54 F.3d 27 (1st Cir. 1995) (executive vice president with annual retirement benefit in excess of $44,000 is not protected by ADEA).
  • 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. Commonwealth of Massachusetts, 2 F.3d 1221, 1225 (1st Cir. 1993); 804 C.M.R. § 3.01(3); Western Air Lines v. Criswell, 472 U.S. 400 (1985) (no BFOQ defense established where flight engineers were forced to retire at age 60). It is no defense to a discharge based solely on age that the employer mistakenly believed that age was a BFOQ for that job. Gates v. Flood, 57 Mass. App. Ct. 739, 744 (2003).
  • Distinctions based on reasonable factors other than age are not actionable. 29 U.S.C. § 623(f)(1); Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008) (RFOA is an affirmative defense).
  • Certain employees in certain foreign countries may be discriminated against. 29 U.S.C. § 623(f)(1).
  • Certain tenured employees at an independent institution of higher learning may be discriminated against. G.L. c. 151B, § 4(17)(c).
  • 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)
  • Judges shall be retired at age 70.  Part II, c. 3, art. 1; Art. 98 of the Amendments to the Massachusetts Constitution.
  • Political entities in Massachusetts may discriminate if permitted by a general or special law. G.L. c. 151B, § 4(1C).

IV.       THE BURDEN OF PROOF


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.


IV(A). Disparate Impact

The disparate impact theory permits a plaintiff to demonstrate age discrimination with proof that an apparently neutral employment practice disproportionately and negatively affects older workers. The U.S. Supreme Court has held that the ADEA authorizes recovery under the disparate impact theory. Smith v. City of Jackson, 125 S. Ct. 1536, 1544 (2005).


The state of the law under Chapter 151B is more complicated. The Supreme Judicial Court has not yet directly resolved the issue of whether an age/impact claim exists under Chapter 151B. The First Circuit, however, has held that there is no age/impact claim under Chapter 151B. Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999). However, the subsequent U.S. Supreme Court decision of Smith v. City of Jackson, 125 S. Ct. 1536 (2005), concerning the ADEA, undercuts much of the reasoning in Mullen. Massachusetts case law suggests that there may be a cognizable age/impact theory under Chapter 151B. See Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34, 39 n.10 (2005); R. Mantell, Age Discrimination Shown By Disparate Impact, 6 MBA Section Review No. 2, 24 (2004). This section will discuss the burdens of proof of age/impact claims, with the assumption that such a claim will be recognized under both the ADEA and Chapter 151B.


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. Connecticut v. Teal, 457 U.S. 440, 446–47 (1982); EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 602 (1st Cir. 1995). It is notable that under the disparate impact framework, proof of discriminatory motive is not required. Smith College v. MCAD, 376 Mass. 221, 227 (1978).


Under the ADEA, the employer may have an affirmative defense, to the extent that it acted based on a “reasonable factor other than age.” Smith v. City of Jackson, 125 S. Ct. 1536, 1543–46 (2005). Chapter 151B does not include such a defense.


Given the controversy over whether disparate impact analysis is appropriate for Chapter 151B age discrimination claims, the safest route for a plaintiff’s attorney is to allege a parallel disparate treatment claim along with any disparate impact claim.


IV(B). Disparate Treatment


The most commonly asserted kind of age discrimination case arises under the disparate treatment theory. Unlike a disparate impact claim, which is often directed toward corporate-wide polices, disparate treatment claims tend to be used when an individual employee believes he or she was treated adversely because of age. A disparate treatment claim may be used to address an employer’s consciously biased decision making or unconscious decisions based on stereotype. Thomas v. Eastman Kodak Co., 183 F.3d 38, 58–60 (1st Cir. 1999); Lipchitz v. Raytheon Co., 434 Mass. 493, 503 n.16 (2001) (“Employment decisions that are made because of stereotypical thinking about a protected characteristic or members of a protected class, whether conscious or unconscious, are actionable under G.L. c. 151B.”).


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 using circumstantial evidence. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2350-2352 (2009) (circumstantial evidence may be sufficient to establish discrimination). 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 (see Sprint/United Management Co. v. Mendelsohn, 128 S. Ct. 1140, 1147 (2008) (admissibility of evidence is left to the judge’s discretion);
  • 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), as modified by later cases. 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.


IV(B)(1).        Prima Facie Case


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 who was five or more years younger.


See Knight v. Avon Prods., Inc., 438 Mass. 413, 424–25 (2003).


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. Sometimes, a prima facie case may be demonstrated without a replacement, if the employer merely looked for a replacement. Whalen v. NYNEX Info. Res. Co., 419 Mass. 792, 796 (1995). Plaintiff’s counsel should research the variety of prima facie cases to find the one most strongly favorable to his or her case.


It is not mandatory that the replacement be five years younger than the plaintiff. Knight v. Avon Prods., Inc., 438 Mass. at 425; but see Williams v. Raytheon Co., 220 F.3d 16 (1st Cir. 2000) (an age difference of less than five years between the plaintiff and his replacement is insufficient to support a prima facie case of age discrimination). Moreover, the replacement may be over 40 years old. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 309–13 (1996).


Allegations of age discrimination commonly arise from layoffs, where employees perceive that they were targeted in a reduction in force (RIF) due to their ages. Such cases raise difficult issues of proof, since an employer may easily assert that it made a legitimate business decision to scale back its workforce. Nevertheless, it remains possible to demonstrate that individual workers were improperly selected for RIF due to age.


In a RIF case, the fourth element of the prima facie burden may be satisfied with proof that the layoff occurred under circumstances that would raise a reasonable inference of unlawful discrimination. Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34, 44–45 & n.14 (2005) (if an employer had five employees in a department (four females and one male), and the employer laid off the only male and retained all the females, that would satisfy the fourth element of the prima facie burden for sex discrimination). A prima facie case may also be shown where the employer sought some form of replacement for the plaintiff, demonstrating a continued need for the same services and skills. See Koster v. Trans World Airlines, Inc., 181 F.3d 24, 31 (1st Cir. 1999) (prima facie case satisfied where some of the plaintiff’s duties were assumed by younger employees). Another possible RIF fourth element would be to prove that the employer did not treat age neutrally or that younger persons were retained in the same position. Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 333 (1st Cir. 1997).


IV(B)(2).        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. Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 334 (1st Cir. 1997). Under Massachusetts law, an employer must not only give a lawful reason for its employment decision, but must also produce credible evidence to show that the reason advanced was the real reason. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441–42 (1995).


The defendant’s articulation must be clear and specific, and not vague. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981); Oliver v. Digital Equip. Corp., 846 F.2d 103, 109 (1st Cir. 1988); Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.5 (1st Cir. 1979). Requiring the defendant to satisfy this burden serves in part the purpose of framing the factual issues with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. Holden v. Comm’n Against Discrimination, 671 F.2d 30, 36 (1st Cir. 1982).


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 Comm. of Boston v. Labor Relations Comm’n, 40 Mass.App.Ct. 327, 335 (1996) (where employer asserted that employees were laid off for budgetary reasons, but failed to describe the decision-making process or identify the decision maker, this articulation was insufficient and warranted judgment favoring the employees).


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.


IV(B)(3).        Proof of Pretext


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 acknowledges that Massachusetts law regarding proof of pretext is perhaps more liberal than federal law. Joyal v. Hasbro, Inc., 380 F.3d 14, 17 (1st Cir. 2004), cert. denied, 543 U.S. 1150 (2005); but see Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000) (Massachusetts and federal standards “are now generally aligned”).


Under Chapter 151B, the plaintiff generates an inference of discrimination sufficient to prevail at the Rule 56 or Rule 50 stages by demonstrating a prima facie case and that one or more of the reasons advanced by the defendant was a pretext (not the real reason). Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 118 (2000); Lipchitz v. Raytheon Co., 434 Mass. 493, 502 n.14 (2001). Thus, it is said that Massachusetts is a “pretext only” jurisdiction. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 443 (1995). While pretext alone, along with a prima facie case, will get a plaintiff over the summary judgment hurdle in a G.L. c. 151B case because it generates an inference of discrimination, a jury is nevertheless free to find that no discrimination existed even if pretext is established at trial. Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 117–18 (2000). Thus, proof of a prima facie case and proof of pretext will preclude summary judgment against the plaintiff; however, such evidence will not guarantee a win at trial.


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 Prods., Inc., 530 U.S. 133, 148–149 (2000); Feliciano de la Cruz v. El Conquistador Resort, 218 F.3d 1, 9–10 (1st Cir. 2000) (applying Reeves 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 courts have acknowledged that such evidence can theoretically be sufficient in other cases. See Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000); Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995); Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 337 (1st Cir. 1997); Baralt v. Nationwide Mutual In., 251 F.3d 10, 18–19 (1st Cir. 2001); but see Parra v. Four Seasons Hotel, 605 F. Supp. 2d 314, 328 (D. Mass. 2009) (“plaintiffs are no longer required to show both pretext and animus to avoid summary judgment”). Thus, a “pretext only” case will likely survive summary judgment in Massachusetts court but might not survive Rule 56 review in federal court. Many practitioners believe that federal courts are dismissing discrimination cases using a standard for “pretext for discrimination” that is more stringent than the G.L. c. 151B standard. Whether by law or by practice, it seems likely that the ADEA imposes greater evidentiary requirements than the “pretext only” requirements of Chapter 151B. See Joyal, 380 F.3d at 17.


In proving pretext, the plaintiff must do more than cast doubt on the appropriateness or wisdom of the employer’s articulated reason. A 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. Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 336–37 (1st Cir. 1997); Durante v. Eastern Props., Inc., 18 MDLR 1, 4 (1996). In addition, all other direct and circumstantial evidence of age animus, such as ageist slurs, should be submitted at this stage, as it further demonstrates pretext.


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 layoff may help demonstrate lack of discriminatory animus.


IV(C). Mixed Motive Analysis


Mixed motive analysis represents an alternative method of demonstrating that a discriminatory motive was the determinative cause of the adverse action. In cases where a plaintiff proves that age was a motivating factor in an employment decision, the employer may nevertheless avoid liability if the employer would have made the same decision in the absence of the discriminatory motive. The employer, in this scenario, argues that a separate, lawful motive determined the outcome, and was dispositive, even if ageist motives were present.


The U.S. Supreme Court has rejected the mixed motive analysis for ADEA claims involving private litigants. Gross v. FBL Fin. Services, Inc., 129 S. Ct. 2343, 2350 (2009). It is possible, however, that mixed motive analysis does apply to ADEA claims against the federal government, because that protection is written especially broadly. 29 U.S.C. § 633a(a) (all personnel actions must be “free from any discrimination based on age”). While the Supreme Judicial Court has yet to decide whether it will follow the Gross rule, it shall be assumed here that the analysis continues to apply to Chapter 151B claims. See Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 113 n.27 (2009).


Under Massachusetts law, the mixed motive analysis applies where there is a showing of direct, or strong, evidence that unlawful discrimination played a motivating role in the employment decision. See Wynn & Wynn, PC v. MCAD, 431 Mass. 655, 666–67 (2000). Circumstantial evidence of discrimination alone may be sufficient to invoke the mixed motive analysis.  See Haddad, 455 Mass., at 114; see also Desert Palace, Inc. v. Costa, 536 U.S. 90, 101-102 (2003) (construing 42 U.S.C. § 2000e-2(m)).


Satisfaction of the plaintiff’s burden shifts the burden of proof to the employer, who must show that a legitimate reason, standing alone, would have induced it to make the same decision. Haddad, 455 Mass. at 114. The mixed motive analysis thus differs from the burden shifting analysis, in that the burden of proof is actually transferred to the employer.


V.         FIRING OLDER WORKERS TO SAVE ON SALARY OR BENEFITS COSTS


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. General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004); Pagliarini v. General Instrument Corp., 855 F. Supp. 459, 462 (D. Mass. 1994). The ADEA is violated under such circumstances if the policy to terminate expensive employees exists as a proxy for age discrimination. Hazen Paper Co. v. Biggins, 507 U.S. 604, 612–13 (1993) (interference with vesting of pension benefits is not evidence of age discrimination). But see McMullin v. Bull, HN Information Sys., Inc., 16 MDLR 1427, 1436 (1994) (statement that “we could go out and hire two college graduates for every one [of the older employees] and they come to us trained” indicated discriminatory animus toward older workers); General Dynamics Land Sys. Inc., 540 U.S. at 588–89 (the legislative history of the ADEA suggests that the higher benefit and pension costs associated with older workers may increase employers’ reluctance to hire and retain such workers).


Efforts to minimize expenses may violate other laws. For example, under the Employee Retirement Income Security Act of 1974 (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. General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004).


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 workers with reduction of salary).


VI.       RETIREMENT ISSUES


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 P.R., 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).


Under the ADEA, age and pension status are distinct concepts, and an employer is free to make distinctions based on pension status, even if such conduct disadvantage older workers, and even if the pension status is itself based on age. Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361, 2367 (2008). 


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.


VII.      REMEDIES AND DAMAGES


VII(A).            ADEA Damages


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, reinstatement and other equitable relief;
  • 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. 604, 614–18 (1993).); 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).


VII(B).                        Chapter 151B Damages


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.


If the case is tried before the MCAD, and not in court, the Commission may award civil penalties against the employer in an amount up to $50,000, depending on whether the employer has engaged in other discriminatory conduct in the past.  G.L. c. 151B, § 5, ¶4(a), (b) & (c). However, those penalties are not awarded to the complainant.  Moreover, the MCAD may not award multiplied damages.


VIII.    DEADLINES AND PROCEDURAL REQUIREMENTS


VIII(A).          Administrative Charge


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 300 days. G.L. c. 151B, § 5. The charge should be filed with the Massachusetts Commission Against Discrimination (MCAD).


In a deferral jurisdiction such as Massachusetts, claimants seeking to pursue their rights under the ADEA must file an administrative charge with the Equal Employment Opportunity Commission (EEOC) or the MCAD within 300 days of the violation. 29 U.S.C. § 626(d)(2). See 29 C.F.R. § 1626.10(c); Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 308 (2d Cir. 1996); Bousquet v. PolyForm Corp., 401 Mass. 1002, 1003 (1987) (rescript). It is possible to file a 151B/MCAD charge that also includes an ADEA claim.


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)(1). Other special deadlines and requirements are imposed on federal employees after this initial deadline, and they should be carefully researched. See Tapia-Tapia v. Potter, 322 F.3d 742, 744 (1st Cir. 2003); Rossiter v. Potter, 357 F.3d 26 (1st Cir. 2004).


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. However, a claim that is not in the MCAD charge may be the basis of a later civil action, if it is based on conduct that the MCAD investigation could reasonably be expected to uncover. Pelletier v. Somerset, 458 Mass. 504, 514 (2010). Under some circumstances, submission of an EEOC Intake Questionnaire may satisfy the requirements for filing a charge. Federal Express Corp. v. Holowecki, 128 S. Ct. 1147 (2008).


VIII(B)            Other Prerequisites for Pursuing a Civil Action Under Chapter 151B


VIII(B)(1)      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 when 90 days have elapsed after the charge was filed (and earlier if the MCAD permits). G.L. c. 151B, § 9. A defendant cannot remove an employment case from the MCAD. Stonehill Coll. v. MCAD, 441 Mass. 549, 565–66 (2004). Removal is accomplished by the plaintiff 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 plaintiff may pursue a civil action. The MCAD charge will be dismissed without prejudice to the civil action, but the plaintiff 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. Pelletier v. Town of Somerset 458 Mass. 504, 510 & n.13 (2010). A similar letter of removal should be sent to the MCAD if such a suit is initiated.


Trials at the MCAD are called “public hearings.” Plaintiffs lose their right to remove a case from the MCAD once a public hearing begins. After the MCAD hearing officer has held a public hearing and issues a decision, the parties may appeal to the full commission. Either party may seek Chapter 30A judicial review by filing a complaint within 30 days of the final order of the full commission. G.L. c. 151B, § 6.


VIII(B)(2)      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 unlawful practice. 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.


VIII(C)            Other Prerequisites for Pursuing a Civil Action Under the ADEA


VIII(C)(1)      Required Waiting Period


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, a plaintiff should wait at least 60 days after his or her age discrimination charge has been filed with the MCAD before bringing a civil action under the ADEA. 29 U.S.C. § 633(b).


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. 1002, 1002–03 (1987); 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).


VIII(C)(2)      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).


IX.       CHOICE OF LAW AND FORUM


There are many considerations to keep in mind when deciding whether to remain at the MCAD or to pursue a civil action.


Enormous backlogs in motion practice and scheduling hearings continue to be a problem at the MCAD.


The MCAD may be a convenient venue to perform some investigation prior to committing to a civil action. The MCAD may, in its discretion, grant parties the right to engage in discovery, prior to entering its investigative determination.  Standing Order of the Commissioners Regarding Pre-Determination Case Process, Feb. 20, 2007.


Multiple damages are not awarded in the MCAD; they are awarded only if a civil action is pursued. However, the MCAD may award civil penalties against an employer in an amount of up to $50,000, based on a tiered analysis of the employer’s history of discriminatory conduct. G.L. c. 151B, § 5, ¶ 4(a), (b), (c).


The parties may obtain a jury trial in court, but not at the MCAD. 29 U.S.C. § 626(c)(2); G.L. c. 151B, § 9.


Where the employee has signed a valid mandatory arbitration provision, arbitration will be compelled, but the MCAD may elect to continue processing the claim, on a parallel track.  Joule v. Simmons, SJC-10712; see MCAD Policy 96-1(I)(1)(d).  In such a situation, the employee may not intervene in the MCAD action, or participate as a party, but the employee may provide evidence, and the MCAD continues to have the authority to award remedies specific to the employee.  Id


At the MCAD, pro se complainants are provided the opportunity to receive free legal guidance.


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 advantages 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 Int’l, Inc., 229 F.3d 49 (1st Cir. 2000).


An ADEA claim in federal court may permit the employee to introduce evidence that would be excluded in state court proceedings. A case in federal court tends to receive a speedier trial, with fewer disruptive continuances.

X.        RELEASES


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 C.F.R. § 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 noncompliant release may nevertheless sue the employer and keep the money that was paid to him or her for signing the release. See Oubre v. Energy Operations, Inc., 522 U.S. 422 (1998). No waiver may be used to interfere with the right of an employee to file a charge or participate in an investigation conducted by the EEOC. 29 U.S.C. § 626(4).


XI.       SURVIVAL OF CLAIMS


A Chapter 151B age discrimination claim survives the death of the plaintiff. Gasior v. Massachusetts General Hospital, 446 Mass. 645, 651–52 (2006). A deceased plaintiff continues to have available all remedies provided under the antidiscrimination statute, including punitive damages. Gasior, 446 Mass. at 654. Likewise, a claim under the ADEA probably survives the death of the plaintiff. Gasior, 446 Mass. at 652.


CONCLUSION


Attorneys representing clients of ages 40 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.