CUSHNER & BLOOM, P.C.

BROOKLINE, MA  02446

Tel. (617) 608-0019

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AGE DISCRIMINATION IN EMPLOYMENT

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.

Generally, to be able to state an actionable claim for age discrimination, an older employee
must establish that he is a member of the protected class, that is, he or she is age 40 or
older, and that he or she was discriminated against on account of age.  The image that
usually comes to  mind is that of a 60-year-old employee who is replaced by someone in
their 20’s.

What happens when a 56-year-old is replaced by a 40-year-old worker?

The U.S. Supreme Court addressed this issue under federal law and stated that although the ADEA limits its protection to those who are 40 or older, it prohibits discrimination against those protected employees on the basis of age, not class membership.  That one member of the protected class loses his job to another member is irrelevant, so long as he lost out on account of his age.  The younger the replacement relative to the older employer, the more convincing the argument of age discrimination is (whether or not the replacement is under 40 or not).  For example, there is no greater inference of age discrimination when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old.

What about replacements who are only slightly younger?

The Massachusetts Supreme Judicial Court recently held that under state law that an age disparity of less than 5 years, by itself, is too insignificant to support a prima facie case of age discrimination.  The Court explained that the fact that someone over forty years old is terminated and replaced by someone less than five years younger, of course, does not by itself negate the possibility that the termination was motivated by the plaintiff's age. Although a bright-line standard of five years is useful, it should not be used to exclude a plaintiff who might otherwise have evidence showing that age was a factor. In an indirect evidence case when the disparity in age is less than five years, therefore, a plaintiff still may present a triable claim if there is other evidence that the termination occurred in circumstances that would raise a reasonable inference of unlawful age discrimination. This burden would require the plaintiff to present some evidence to permit the jury to find that age was a determinative cause in the termination.   It is irrelevant that the employer can present evidence tending to show that there was no actionable misconduct. The central question is whether the plaintiff has established a logical basis for a jury to find that the employer would not have taken the same action had the employee been of a younger age.
 

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

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.