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AGE DISCRIMINATION IN MASSACHUSETTS
Do you feel put out to pasture because you're over 40?
(click below for video)
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.
Age Discrimination Is Unlawful
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.
Proving the Case
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);
he or she was performing his or her job at a level that met his employer's
he or she experienced an adverse employment action such as discharge,
generally, that he or she was replaced by a person with roughly equivalent
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:
directly by persuading the court that a discriminatory reason more likely
indirectly, by showing that the employer's proffered explanation is
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.