CUSHNER & BLOOM, P.C.

BROOKLINE, MA  02446

Tel. (617) 608-0019

T

 Tttt6wdth=100></H4>- 608-001

AGE DISCRIMINATION IN MASSACHUSETTS

Do you feel put out to pasture because you're over 40?

The following is a general overview of the Massachusetts law forbidding age discrimination in employment.  It is not meant as a complete explanation of this complex area of the law nor is it meant as a guideline for a non-attorney to assess his or her situation.

Pursuant to Massachusetts General Laws Chapter 151B, Section 4(1), it shall be an unlawful practice for an employer in the private sector, by himself or his agent, because of the age of an individual to refuse to hire or employ or to bar or discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. The bona fide occupational qualification is to be narrowly applied.  To qualify for this narrow exception, an employer must show that the essence of the business operation would be undermined.

A Complainant may establish his case through direct evidence of age discrimination.  Absent direct evidence of age discrimination, an employee generally may make a prima facie case by demonstrating by a preponderance of the evidence that:

(1) Complainant was in the protected age group (at least 40 years old);

(2) he or she was performing his or her job at a level that met his employer's
      legitimate expectation, in other words, he or she was discharging the
      responsibilities of the job capably;

(3) he or she experienced an adverse employment action such as discharge,
      layoff or severance of the employment relationship; and

(4) generally, that he or she was replaced by a person with roughly equivalent
      job qualifications.  However, there is no absolute requirement that the
      terminated employee show that a  younger  employee was hired to replace
      him or her.  It   is often enough for Complainant to show that the employer
      sought some sort of performance replacement which would demonstrate
      the employer's continued need for the same services and skills. A
      Complainant whose employment was terminated in the course of a
      reduction in work force need not demonstrate that he was replaced but may
      show that the employer did not treat age neutrally or that younger  persons
      were retained in the same position.

This has been commonly referred to as the "McDonnell Douglas" test for a prima facie discrimination case.  Federal courts applying federal age discrimination law have tailored the McDonnell Douglas test so as to require, for the fourth prong, that the employee show that the employer's decision occurred within circumstances giving rise to an inference of discrimination.

The establishment of a prima facie case creates a presumption that the employer unlawfully discriminated against the employee.  The prima facie case raises an inference of discrimination because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors (age).  The burden of production then shifts to the employer to articulate some legitimate reason for the termination.  The employer's explanation must consist of not only a nondiscriminatory reason for the employer's actions but also credible evidence indicating that the reasons advanced were the real reasons.

Provided that the employer sustains its burden of production, the employee must then demonstrate that the employer's proffered reason for the adverse employment action  was simply a pretext (for age discrimination).  Generally, the Complainant may prove that the employer's proffered reason is merely a pretext in two ways:

(1) directly by persuading the court that a discriminatory reason more likely
      motivated the employer in taking the adverse employment action;  or

(2) indirectly, by showing that the employer's proffered explanation is
     unworthy of credence. If the employer's proffered reason has no  reasonable
     support in the evidence or is wholly disbelieved, the employee should prevail.

Attorney Steven Bloom offers representation in all areas of discrimination, not only employment discrimination, but including housing discrimination and discrimination in places of public             accommodation as well.