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Employment Discrimination in Massachusetts
Employment
& Labor Law
PRINT & EBOOKS
Employment
Discrimination
in
Massachusetts
2nd Edition 2020
1-800-966-6253 | www.mcle.org
NEW ENGLAND
2140521B02
2200271B02 Keep raising the bar.®
Employment Discrimination
in Massachusetts
2ND EDITION 2020
AUTHORS
Richard L. Alfred
Shannon M. Berube
Gavriela M. Bogin-Farber
Alida Bográn-Acosta
Mary L. Bonauto
Justine H. Brousseau
Anthony S. Califano
David Conforto
Sherley Cruz
Alexandra H. Deal
Patrick J. Hannon
Anne L. Josephson
Nina Joan Kimball
Gwen Nolan King
Daniel B. Klein
Arielle B. Kristan
Allyson E. Kurker
Jennifer L. Levi
Robert S. Mantell
Johanna L. Matloff
Stephen T. Melnick
Katherine J. Michon
Julie M. Muller
Sean P. O’Connor
Mary E. (Beth) O’Neal
Lucia A. Passanisi
Dahlia C. Rudavsky
Robert M. Shea
Michael E. Steinberg
James S. Weliky
2200271B02
© 2020 by Massachusetts Continuing Legal Education, Inc. All rights reserved. Published 2020. Permis-
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Massachusetts Continuing Legal Education, Inc.
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This publication should be cited: Employment Discrimination in Massachusetts (MCLE, Inc. 2020)
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ISBN: 9781683451853
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ACKNOWLEDGMENTS
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producing this book.
Alexis J. LeBlanc
Publications Attorney
January 2020
MARY L. BONAUTO is the civil rights project director at GLBTQ Legal Advocates
& Defenders in Boston. She has litigated on discrimination issues, free speech and
religious liberty, and relationship and parental rights. In 2015 Ms. Bonauto success-
fully argued before the U.S. Supreme Court in the historic case of Obergefell v.
Hodges, which established the freedom to marry for same-sex couples nationwide.
She was lead counsel in Goodridge v. Department of Public Health (2003), which
made Massachusetts the first state where same-sex couples could legally marry; co-
counseled in Baker v. State and Kerrigan v. Connecticut DPH; served on the 2009
and 2012 Maine ballot campaign executive committees; led GLBTQ Legal Advo-
cates & Defenders’ Gill and Pedersen challenges to the Defense of Marriage Act;
and coordinated the amici strategy in Windsor v. United States at the U.S. Supreme
Court. Ms. Bonauto holds a law degree from Northeastern University School of Law,
is the Shikes fellow in civil liberties and civil rights and a lecturer on law at Harvard
ALEXANDRA H. DEAL is principal of Deal Law in West Medford, where she fo-
cuses on criminal and civil appeals, employment counseling and litigation, civil rights
litigation, and student misconduct. She is also of counsel at Strang, Scott, Giroux &
Young LLP, Boston, where she handles the firm’s employment counseling and em-
ployment litigation matters. Previously, she was with Burns & Levinson LLP and
Stern, Shapiro, Weissberg & Garin LLP. Ms. Deal is a graduate of Cornell University
and Boston College Law School.
ANNE L. JOSEPHSON is a partner with Kotin, Crabtree & Strong LLP in Boston.
She concentrates in employment law and litigation, including civil rights, business,
real estate, and health law. Previously, she was with Nutter McClennen & Fish LLP,
clerked for the Honorable Edward F. Hennessey of the Massachusetts Supreme Judi-
cial Court, and was an assistant attorney general with the Office of the Attorney Gen-
eral, Commonwealth of Massachusetts. Ms. Josephson is a graduate of Smith College
and Boston College Law School.
GWEN NOLAN KING is counsel in the Boston firm of Sugarman, Rogers, Barshak
& Cohen, PC, where she focuses her practice on complex business, employment,
professional liability, real estate, and products liability litigation. She has successful-
ly represented clients in complex commercial disputes before both federal and state
judiciaries. In addition to representation in litigation, she regularly advises clients on
contractual negotiations and employment issues in an effort to reduce the risk of fu-
ture litigation. Ms. King is an active member of both the Boston Bar Association,
where she is on the steering committee for the College & University Section, and the
Women’s Bar Association of Massachusetts, where she is a member of the board.
She is a graduate of Fairfield University and Cornell Law School.
& Employment Section council. Mr. Mantell is a graduate of Tufts University (B.A.),
Duke University (M.A.), and Duke University School of Law (J.D.).
MARY E. (BETH) O’NEAL is a partner with Conn Kavanaugh Rosenthal Peisch &
Ford LLP in Boston. She focuses her practice on employment law and employment
litigation, representing management clients and executives; business litigation; and
alcoholic beverages franchise litigation and licensing. She has extensive litigation
experience in state and federal courts and before administrative agencies (including
the Massachusetts Commission Against Discrimination and the Equal Employment
Opportunity Commission), defending employers in all aspects of employment-
related matters, including wage-and-hour, discrimination, and unlawful termination
claims. She advises employers on issues involving best employment practices and
procedures, as well as state and federal employment laws and regulations that impact
the workplace, including the Fair Labor Standards Act, the Family and Medical
Leave Act, the Americans with Disabilities Act, and numerous other state and federal
laws. Ms. O’Neal also prepares employment policies for employers and conducts
training for management and human resources personnel. In addition, she advises
and negotiates on behalf of her clients, employers and executives alike, in the area of
employment, severance, noncompetition, nonsolicitation, and change in control
agreements. She is a graduate of Boston College and Suffolk University Law School.
LUCIA A. PASSANISI is an associate attorney at Todd & Weld LLP in Boston. She
focuses her practice in employment law, counseling clients in a variety of matters,
including noncompetition and nonsolicitation issues, nonpayment of wages and
Wage Act claims, breach of fiduciary duty issues, trade secret disputes, and sexual
harassment and discrimination claims. Ms. Passanisi graduated summa cum laude
from Boston College and received her law degree from Northeastern University
School of Law.
phasis on discrimination cases. She was the 1990 recipient of the Georgina Smith
Award of the American Association of University Professors for “outstanding advo-
cacy on behalf of academic women,” and continues to represent large numbers of
university faculty in tenure, promotion, equal pay, and other discrimination cases. In
2011, Ms. Rudavsky won a victory at the Supreme Judicial Court that extended the
antiretaliation provisions of the Massachusetts law against discrimination to former
employees. Recognized in the 2014, 2017, and 2019 editions of The Best Lawyers in
America as “Lawyer of the Year” for the Boston area in the representation of individ-
uals in employment matters, Ms. Rudavsky was named one of Massachusetts Law-
yers Weekly’s “Lawyers of the Year” for 1999 and Boston Area Lawyer of the Year in
the area of union representation by The Best Lawyers in America for 2016. She has
taught labor law at Harvard Law School as a lecturer in law. Ms. Rudavsky is a grad-
uate of Yale University (magna cum laude) and the University of California at Berkeley
School of Law.
ROBERT M. SHEA is a shareholder with Ogletree, Deakins, Nash, Smoak & Stew-
art, PC, in Boston, where he handles employment litigation and advises clients on the
full range of employment law matters, including employment agreements, independ-
ent contractor agreements, and separation agreements; discipline and discharge; har-
assment complaints; wage-and-hour compliance; noncompetition; and workforce
reductions. He also conducts workplace training and employment law audits and is an
arbitrator and mediator, resolving employment contract disputes and statutory claims.
Mr. Shea is a graduate of Boston College and the George Washington University
National Law Center.
JAMES S. WELIKY, a partner at Messing, Rudavsky & Weliky, PC, in Newton, con-
centrates his practice in plaintiff’s employment law. For more than twenty years, Mr.
Weliky has successfully represented employees in cases involving discrimination,
sexual harassment, wrongful termination, and a variety of other employment claims
in federal and state court and before numerous administrative agencies, including the
Massachusetts Commission Against Discrimination and the U.S. Equal Employment
Opportunity Commission. Mr. Weliky has also been an active member of a number
of bar associations, including the Boston and Massachusetts Bar Associations and the
Massachusetts Employment Lawyers Association. He is a regular panelist for MCLE
and has authored or coauthored a number of amicus briefs in key cases that have
helped shape the practice of employment law in Massachusetts.
Table of Cases
Index
Overview of Employment
Discrimination
David Conforto, Esq.
Conforto Law Group, Boston
Alexandra H. Deal, Esq.
Strang, Scott, Giroux & Young LLP, Boston
Scope Note
This chapter provides a basic introduction to employment discrimi-
nation law, covering both theories of liability: disparate treatment
and disparate impact. It lays out the elements of a case, the parties’
respective burdens of proof, and relevant case law.
§ 1.1 INTRODUCTION
An employee who has been discriminated against on the basis of their race, gender,
age, or membership in another protected category rarely has “direct” evidence of
discrimination because an employer is unlikely to tell an employee that it is making
an adverse decision about the employee because of the employee’s legally protected
characteristic. Instead, the vast majority of discrimination cases involve “indirect” or
circumstantial evidence of disparate treatment. Circumstantial evidence is no less
powerful than direct evidence, however. See Desert Place, Inc. v. Costa, 539 U.S. 90,
100 (2003) (“Circumstantial evidence is not only sufficient, but may also be more
certain, satisfying and persuasive than direct evidence.”) (citing Rogers v. Mo. Pac.
R.R. Co., 352 U.S. 500, 508, n.17 (1957)). For example, a highly qualified woman
may claim that she was denied a promotion because of her gender when the employ-
er promoted a less qualified man instead. The plaintiff would present circumstantial
evidence of discriminatory treatment and the fact finder may draw inferences from
the evidence to determine that the employer’s decision violated G.L. c. 151B or the
applicable federal statute. Both federal and state courts have adopted frameworks for
considering claims of disparate treatment where there is no direct evidence of the
employer’s discriminatory intent.
In the first stage, the plaintiff must produce “evidence of a prima facie case of dis-
crimination,” showing that
• they are a member of a class protected by G.L. c. 151B;
• they performed their job at an acceptable level;
• they were treated differently than another person not in their protected class
but otherwise similarly situated; and
• they suffered an adverse action.
Yee v. Mass. State Police, 481 Mass. 290, 294–95 (2019) (citing Trs. of Health &
Hosps. of Bos., Inc. v. MCAD, 449 Mass. 675, 681–82 (2007); Verdrager v. Mintz,
Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 396 (2016). See Yee v.
Mass. State Police, 481 Mass. at 295 n.5 (“The elements of the prima facie case may
vary depending on the nature of the discrimination claim.”). “[T]he plaintiff’s initial
burden of establishing a prima facie case is not intended to be onerous.” Sullivan v.
Liberty Mut. Ins., 444 Mass. 34, 45 (2005). Rather, “[i]t is meant to be a small show-
ing that is easily made.” Sullivan v. Liberty Mut. Ins., 444 Mass. at 45. If the plaintiff
meets the burden of establishing a prima facie case, “unlawful discrimination is pre-
sumed” and the burden of production shifts to the employer. Matthews v. Ocean
Spray Cranberries, Inc., 426 Mass. 122, 128 (1997).
onerous.” Yee v. Mass. State Police, 481 Mass. at 302 (citing Blare v. Husky Injection
Molding Sys. Bos., Inc., 419 Mass. at 442). “Even if the reasons given are arguably
suspect, so long as the [employer] has produced a lawful reason backed by some
credible evidence, it has satisfied this burden.” Yee v. Mass. State Police, 481 Mass. at
302 (citing Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 128). Neverthe-
less, in order to meet its burden, the employer’s “explanation must not be wholly
unbelievable such that an underlying discriminatory motive is obvious.” Yee v. Mass.
State Police, 481 Mass. at 302 (citing Wheelock Coll. v. MCAD, 371 Mass. 130, 138
(1976)). It is important to note that an employer’s contention that an employee was
not performing at an acceptable level must only be viewed at the “pretext” and final
stage of the McDonnell Douglas burden-shifting framework and cannot be used as a
means to challenging the employee’s prima facie case. Fontaine v. Ebtec Corp., 415
Mass. 309, 312 n.6 (1993); Williams v. Frank, 757 F. Supp. 112, 117 (D. Mass. 1991)
(the incident involving alleged poor performance “is more logically viewed as a de-
fense to be raised by the employer at the second stage of the McDonnell Douglas
framework rather than an impediment to the plaintiff’s prima facie case”).
At the third stage, the burden shifts back to the employee to produce evidence that
“the employer’s articulated justification [for the adverse action] is not true but a pre-
text.” Bulwer v. Mt. Auburn Hosp., 473 Mass. at 681 (quoting Blare v. Husky Injec-
tion Molding Sys. Bos., Inc., 419 Mass. at 443) (alteration in original)). Since direct,
“smoking gun” evidence is rare, the employee may carry their burden of persuasion
with circumstantial evidence that persuades the fact finder that the employer’s expla-
nation is not credible. City of Salem v. MCAD, 44 Mass. App. Ct. 627, 642 (1998).
The employee’s proof of pretext may include showing “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legiti-
mate reasons for its action.” City of Salem v. MCAD, 44 Mass. App. Ct. at 643 (cita-
tions omitted); see also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (“The
reasonableness of the employer’s reasons may of course be probative of whether they
are pretexts. The more idiosyncratic or questionable the employer’s reason, the easier
it will be to expose it as a pretext, if indeed it is one.”).
The particulars of the prima facie case may vary depending on the specific circum-
stances giving rise to the claim of discrimination. Blare v. Husky Injection Molding
Sys. Bos., Inc., 419 Mass. at 441. For example, in Yee v. Massachusetts State Police,
the Supreme Judicial Court observed that courts must necessarily examine the ques-
tion of whether a plaintiff suffered an adverse employment action on a case-by-case
basis, since what is adverse to one employee may not be adverse to another in a dif-
ferent set of circumstances. Yee v. Mass. State Police, 481 Mass. at 296–97 (holding
that where an employee can show material differences between two positions in the
opportunity for compensation or in the terms, conditions, or privileges of employ-
ment, the failure to grant a lateral transfer to the preferred position may constitute an
adverse employment action under Chapter 151B).
Additionally, the first element of the prima facie case, “membership in a protected
class,” has been expanded under Massachusetts law to allow for claims of “associa-
tional discrimination.” Flagg v. AliMed, Inc., 466 Mass. 23 (2013). As the Supreme
Judicial Court explained in Flagg, “[t]he term ‘associational discrimination’ refers to
a claim that a plaintiff, although not a member of a protected class himself or herself,
is the victim of discriminatory animus directed toward a third party who is a member
of the protected class and with whom the plaintiff associates.” Flagg v. AliMed, Inc.,
466 Mass. at 27 (citations omitted). Thus, where an employer takes an adverse action
against an employee premised on discriminatory animus directed at a person with
whom that employee associates (a spouse, for example), “this form of discrimination
fits within the scope of c. 151B.” Flagg v. AliMed, Inc., 466 Mass. at 27, 37 (associa-
tional discrimination based on handicap is prohibited under Section 4(16)). Subse-
quent cases in the U.S. District Court for the District of Massachusetts have limited
Flagg’s application in federal litigation, however. Fenn v. Mansfield Bank, 2015 WL
628560 (D. Mass. Feb. 12, 2015) (Flagg did not require that a reasonable accommo-
dation be made for an employee on account of their spouse’s condition, and that Sec-
tion 4(16) would not be violated merely because an employee was discharged after
demanding a work accommodation, because of a disabled spouse, that the employer
denied); Perez v. Greater New Bedford Vocational Tech. Sch. Dist., 988 F. Supp. 2d
105, 111 (D. Mass. 2013) (Flagg limited its analysis to associational claims involv-
ing immediate family members; declined to extend Flagg reasoning to a special-
educator who worked with disabled children, finding that the plaintiff was fired “be-
cause she advocated for the interests of disabled children . . . [not because] she was
subject to the same prejudice, stereotypes, or unfounded fear that accompanies dis-
crimination against the handicapped”).
As with Chapter 151B, the plaintiff’s proof that the defendant’s proffered reasons for
the adverse action are not credible may be sufficient for a plaintiff to prevail under
federal antidiscrimination statutes (i.e., the Americans with Disabilities Act, the Age
Discrimination in Employment Act, and Title VII). Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 147 (2000). This discretion to infer unlawful motive based on
an employer’s dishonesty alone marked a departure from the “pretext-plus” standard
created by the Supreme Court in St. Mary’s Honor Center v. Hicks, 509 U.S. 502
(1993). Compare Reeves v. Sanderson Plumbing Prods., 530 U.S. at 147 (“the trier of
fact can reasonably infer from the falsity of the explanation that the employer is dis-
sembling to cover up a discriminatory purpose”), with St. Mary’s Honor Ctr. v. Hicks,
509 U.S. at 523–24 (“Title VII does not award damages against employers who can-
not prove a nondiscriminatory reason for adverse employment action, but only
against employers who are proven to have taken adverse employment action by rea-
son of (in the context of the present case) race.”).
Federal courts have extended the adverse impact theory of liability from Title VII
cases to cases brought under the Americans with Disabilities Act (ADA), Raytheon
Co. v. Hernandez, 540 U.S. 44, 53 (2003) (dictum) (“Both disparate-treatment and
disparate-impact claims are cognizable under the ADA.”), and the Age Discrimina-
tion in Employment Act (ADEA), Smith v. City of Jackson, 544 U.S. 228 (2005).
However, the scope of disparate impact liability under the ADEA is narrower than
under Title VII because the ADEA contains a provision that permits employment
actions, otherwise prohibited, if they are based on “reasonable factors” other than
age. Smith v. City of Jackson, 544 U.S. at 237. The Court held that, to pursue a dis-
parate impact claim under the ADEA, plaintiffs must “isolate and identify the specif-
ic employment practices that are allegedly responsible for any observed statistical
disparities.” Smith v. City of Jackson, 544 U.S. at 241.
Adverse impact claims are also recognized under G.L. c. 151B. See, e.g., Cox v. New
Eng. Tel. & Tel. Co., 414 Mass. 375, 385 (1993) (adverse impact theory available in
handicap discrimination claim); Sch. Comm. of Braintree v. MCAD, 377 Mass. 424,
429 (1979) (disparate treatment and disparate impact are available theories of liability
in gender discrimination case); Lopez v. Commonwealth, 463 Mass. 696, 709 (2012)
(disparate impact available in race, color, or national origin discrimination case).
Age discrimination claims based on a theory of disparate impact are also available
under Chapter 151B. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 n.10
(2005) (while noting plaintiff’s claims were based on disparate treatment theory,
Supreme Judicial Court commented on theory of disparate impact); Luyen Huu Ngu-
yen v. William Joiner Ctr. for the Study of War & Soc. Consequences, 450 Mass. 291,
294 (2007) (availability of disparate impact theory in age discrimination cases alt-
hough claims dismissed on procedural grounds); Porio v. Dep’t of Revenue, 80 Mass.
App. Ct. 57, 66 (2011) (citing Sch. Comm. of Braintree v. MCAD, 377 Mass. at 429
n.10 (disparate impact theory available in age discrimination cases)).
MCLE and the authors are grateful to Lynn G. Weissberg, Esq., for her contributions
to a previous version of this chapter.
Age Discrimination
Robert S. Mantell, Esq.
Powers, Jodoin, Margolis & Mantell LLP, Boston
Sean P. O’Connor, Esq.
Morgan, Brown & Joy LLP, Boston
Scope Note
This chapter provides an overview of age discrimination claims based
on theories of disparate impact and disparate treatment. It sets forth
the elements of a claim under federal and state statutes, along with
defenses, available remedies and damages, choice of forum, stat-
utes of limitations, procedural requirements for filing, settlements,
and releases.
Massachusetts General Laws Chapter 151B and the federal Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq., are the principal focus of this
chapter. 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; 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).
The general prohibition against age discrimination restricts the conduct of certain
private employers, governmental entities, labor organizations, and employment agen-
cies. 29 U.S.C. §§ 623(b), 623(c), 630(b), 630(c), 630(d), 633(a); G.L. c. 151B,
§§ 4(1C), 4(2), 4(3). An important exception is that the ADEA does not apply to state
employers that fail to consent to such suits. Kimel v. Fla. Bd. of Regents, 528 U.S. 62,
79 (2000). However, a public employee’s right to sue the Commonwealth of Massa-
chusetts for age discrimination remains under G.L. c. 151B.
The ADEA applies to private employers in industries affecting commerce with twen-
ty or more employees. 29 U.S.C. § 630(b) (setting forth test for determining number
of employees). The ADEA applies to governmental entities of all sizes. Mt. Lemmon
Fire Dist. v. Guido, 139 S. Ct. 22, 25–27 (2018). General Laws Chapter 151B applies
to private employers with six or more employees. G.L. c. 151B, § 1(5). When a Mas-
sachusetts employer with fewer than six employees engages in age discrimination,
G.L. c. 93, § 103 may provide a remedy. Section 103 provides that older persons 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.
As the ADEA provides the exclusive remedy for federal employees alleging age dis-
crimination, 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 discrimina-
tion 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).
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–78 (2009). The employee may use
direct or circumstantial evidence. Gross v. FBL Fin. Servs., Inc., 557 U.S. at 177. 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 they were terminated because of
their age, the case is considered one of disparate treatment. Where an employee as-
serts that they were 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 lawyer should explicitly state in the complaint which theory or theories
will be pursued.
The state of the law under G.L. c. 151B is more complicated. The First Circuit has
held that there is no age/impact claim under G.L. c. 151B. Mullin v. Raytheon Co.,
164 F.3d 696 (1st Cir. 1999). The Supreme Judicial Court has not yet directly re-
solved the issue of whether an age/impact claim exists under G.L. c. 151B. However,
because the Supreme Judicial Court has relied on federal court interpretations of
analogous federal statutes when construing G.L. c. 151B, the U.S. Supreme Court’s
decision in Smith v. City of Jackson, 544 U.S. 228 (2005), raises a question as to the
continuing viability of the First Circuit’s holding in Mullin. It has been argued that
there may be a cognizable age/impact theory under G.L. c. 151B. See Sullivan v. Lib-
erty Mut. Ins. Co., 444 Mass. 34, 39 n.10 (2005); R. Mantell, “Age Discrimination
Shown by Disparate Impact,” 6 MBA Section Rev. No. 2, 24 (2004). Moreover, the
Massachusetts Appeals Court has held that age discrimination claims brought against
the Commonwealth may be brought under a disparate impact theory. See Porio v.
Dep’t of Revenue, 80 Mass. App. Ct. 57 (2011). The U.S. District Court for the Dis-
trict of Massachusetts has also held that a G.L. c. 151B age discrimination claim may
be brought against a private employer under a disparate impact theory. Seifaee v. Are-
va, Inc., No. 14-12621-RGS, 2015 WL 6962833, at *4–5 (D. Mass. Nov. 10, 2015)
(relying on Smith and Porio to conclude that Mullin v. Raytheon Co. is no longer
good law).
The initial prima facie burden in a disparate impact case is on the plaintiff to show
that they have been harmed by an ostensibly age-neutral employment practice that
nevertheless has a significant adverse impact. For example, a policy requiring the
termination of all employees with more than twenty-five 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 disproportionately affects older workers. Caron v. Scott Paper Co., 834
F. Supp. 33, 39 (D. Me. 1993).
Disparate impact may be demonstrated with statistical proof. However, under the
ADEA, where statistics are relied upon as proof of age discrimination, the plaintiff
must “isolat[e] and identif[y] the specific employment practices that are allegedly
responsible for any observed statistical disparities.” Smith v. City of Jackson, 544
U.S. at 241.
Once a plaintiff establishes a prima facie case, the burden then is on 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 noteworthy that, under the disparate impact framework, proof of dis-
criminatory motive is not required. Smith Coll. 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, 544
U.S. at 236–43. Under the reasonableness test, an employer need not establish that
there was no other way for it to achieve its goals that would not have resulted in a
disparate impact on the protected class of employees. Smith v. City of Jackson, 544
U.S.at 236–43.
The U.S. Supreme Court has clarified that, where an employer asserts its reliance
upon reasonable factors other than age as an affirmative defense to liability from dis-
parate impact claims under the ADEA, it bears both the burden of production and the
burden of persuasion in asserting this defense. Meacham v. Knolls Atomic Power
Lab., 554 U.S. 84 (2008).
Practice Note
Given the controversy concerning whether disparate impact analysis is
appropriate for G.L. c. 151B age discrimination claims, the safest route
for the plaintiff’s lawyer is to allege a parallel disparate treatment claim
along with any disparate impact claim.
decisions that are made because of stereotypical thinking about a protected characteris-
tic or members of a protected class, whether conscious or unconscious, are actiona-
ble 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 employ-
ee’s termination is due to her age.
Where the discriminatory motive for a termination is not stated so bluntly, there are
other ways to prove age discrimination using circumstantial evidence. Such circum-
stantial 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 Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008) (whether such ev-
idence is admissible is a decision left to the discretion of the trial judge);
• 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 age-neutral policies that significantly disadvantage
older workers; and
• evidence that the employer’s stated reason for the employee’s termination was
pretextual.
While it may not be necessary to prove that the employer is hostile or angry toward
older people in order to prove a discriminatory motive, it still must be demonstrated
that age was the motivating or animating force behind the decision. Gates v. Flood,
57 Mass. App. Ct. 739, 745 n.12 (2003). In one case, for example, evidence that the
employer sought to “reach a younger, affluent clientele, and to change the face of the
marketing personnel” was found sufficient to demonstrate discriminatory animus.
DiIorio v. Willowbrook Country Club, 33 M.D.L.R. 166–67 (2011) (Full Commission
decision).
Burden-Shifting Analysis
The most commonly utilized avenue for proving discrimination with circumstantial
evidence follows a burden-shifting formula set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–05 (1973), as modified by later cases; however, the U.S.
Supreme Court has noted that it “has not definitively decided whether the evidentiary
framework of McDonnell Douglas Corp. . . . is appropriate in the ADEA context.”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 n.2 (2009). Plaintiffs bringing
claims under the ADEA retain the burden of persuasion to establish that age was the
“but for” cause of the employer’s actions, and that burden never shifts to the employer
to prove otherwise. Gross v. FBL Fin. Servs., Inc., 557 U.S. at 177. The McDonnell
Douglas Corp. analysis requires that the plaintiff first prove a prima facie case of age
discrimination. Then the burden of production shifts to the defendant to produce le-
gitimate, 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. The
evidentiary burden required to satisfy the prima facie case of age discrimination for
G.L. c. 151B claims is the subject of dispute. Plaintiffs would argue that the evidence
required for a prima facie case has been modified by the Supreme Judicial Court to
require a three-step burden:
• the plaintiff was over forty years old;
• the plaintiff was qualified for the position; and
• the plaintiff was terminated.
See Bulwer v. Mt. Auburn Hosp., 473 Mass. 672, 681 (2016) (race discrimination);
Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 396–
397 (2016) (gender discrimination); Massasoit Indus. Corp. v. MCAD, 91 Mass. App.
Ct. 208, 210 (2017) (age discrimination); Gordon v. Earthlink, Inc., No. 14-14145-
FDS, 2017 WL 3203385, at *7, n.8 (D. Mass. July 27, 2017) (age discrimination
under G.L. c. 151B). However, some appeals courts continue to use the four-step
approach described below. Welgoss v. MBTA, 90 Mass. App. Ct. 1113 (2016); Perry
v. Franklin Pub. Schs., 89 Mass. App. Ct. 1115 (2016).
Prior to Bulwer, Massachusetts, like the federal courts, used a four-step approach.
Given that the four-step prima facie case may still apply to Chapter 151B age claims
and remains valid for ADEA claims, that approach will be discussed in further depth.
An example of a four-step prima facie case is where
• the plaintiff was more than forty years old;
• the plaintiff met the employer’s legitimate job performance expectations;
• the plaintiff was terminated; and
• 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 con-
stitute evidence merely raising an inference that age discrimination was involved.
Under Massachusetts law, for example, it is not imperative that the replacement be
five years younger if the plaintiff is able to present other evidence that would give
rise to a reasonable inference of age discrimination. Knight v. Avon Prods., Inc., 438
Mass. at 425. However, in Williams v. Raytheon Co., 220 F.3d 16 (1st Cir. 2000), the
First Circuit sided with other appellate circuits in holding that an age difference of
less than five years between the plaintiff and their replacement was insufficient as a
matter of law to support a prima facie case of age discrimination.
It is not fatal to the prima facie case if the replacement is more than forty years old.
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 309–13 (1996). Sometimes
a prima facie case may be demonstrated with proof that the job position remained
open after the employee’s termination and the employer continued to seek applica-
tions from persons with the plaintiff’s qualifications. 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 their case.
In an 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 in-
ference of unlawful discrimination. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34,
44–45, n.14 (2005) (if an employer had five employees in a department [four female
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 discrimina-
tion); Scarlett v. City of Boston, 93 Mass. App. Ct. 593, 598–99 (2018) (out of seven
provisional teachers considered for layoff, the employer fired the only two black
teachers). In some circumstances, the retention of younger employees may be able to
satisfy the burden, even if they are over forty years of age. Caputy v. Quad/Graphics,
Inc., No. 14–14159–FDS, 2015 WL 2208825, at *2–4 (D. Mass. May 11, 2015) (sixty-
four-year-old plaintiff was laid off, while employees aged fifty-three, fifty-two, forty-
nine, and twenty-nine were retained). But see Caputy v. Quad/Graphics, Inc., No. 14-
14159-FDS, 2016 WL 7045702, at *4 (D. Mass. Dec. 2, 2016) (under federal law,
retention of younger employees in the same position is sufficient to establish a prima
facie case, but that same proof is not necessarily sufficient under G.L. c. 151B). A
plaintiff may also be able to satisfy the burden with proof that the employer retained
a lower-rated employee who is younger. Doherty v. Kenseal Constr. Prods. Corp., 87
Mass. App. Ct. 1117 (2015). A prima facie case may also be shown where the em-
ployer sought some form of replacement for the plaintiff, demonstrating a continued
need for the same services and skills. Another RIF fourth element would be to prove
that the employer did not treat age neutrally. Hidalgo v. Overseas Condado Ins.
Agencies, Inc., 120 F.3d 328, 333 (1st Cir. 1997).
Defense lawyers should be aware of cases that have held that an inference of discrim-
ination is not generated where the plaintiff shows only that the duties of the eliminat-
ed positions are being performed by younger employees. See, e.g., Hoffman-Garcia
v. Metrohealth, Inc., 918 F.3d 227, 230–31 (1st Cir. 2019); Welgoss v. Mass. Dep’t of
Transp., 90 Mass. App. Ct. 1113 (2016); Plante v. Shawmut Bank, 8 Mass. L. Rptr.
643, 646 (Super. Ct. 1998). But see Koster v. Trans World Airlines, Inc., 181 F.3d 24,
31 (1st Cir. 1999) (prima facie case satisfied where some of plaintiff’s duties were
assumed by younger employees).
After the plaintiff succeeds in proving their prima facie case, the burden of produc-
tion is on the defendant to articulate a legitimate, nondiscriminatory reason for the
termination. The burden requires the defendant to produce evidence of the nondis-
criminatory 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. Bos., Inc., 419 Mass. 437, 441–42 (1995).
The defendant’s articulation must be clear and specific, and not vague. Tex. Dep’t of
Cmty. 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, 1011–12 n.5
(1st Cir. 1979). Requiring the defendant to satisfy this burden serves in part the pur-
pose 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 Dis-
crimination, 671 F.2d 30, 36 (1st Cir. 1982).
Usually, the employer will satisfy its burden to articulate a legitimate business rea-
son. The articulation rebuts the initial presumption of discrimination.
Proof of Pretext
Once the defendant has successfully articulated its reason for the termination, the
plaintiff must prove that the reason articulated by the defendant is a pretext for dis-
crimination.
A remaining issue of contention is whether proof of pretext alone will generate an infe-
rence of discrimination or whether additional evidence is required to find discrimination
at this third stage. The First Circuit has indicated that the Massachusetts law regard-
ing proof of pretext is perhaps more liberal than federal law. Joyal v. Hasbro, Inc.,
380 F.3d 14, 17 (1st Cir. 2004).
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 (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 cases do acknowledge that such evidence can theoretically be
sufficient in other cases. See Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir.
2000); Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 337 (1st Cir.
1997); Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995). But see Parra v. Four Seasons Ho-
tel, 605 F. Supp. 2d 314, 328 (D. Mass. 2009) (stating “plaintiffs are no longer re-
quired to show both pretext and animus to avoid summary judgment”). For example,
even following Reeves, a plaintiff must still demonstrate a discriminatory animus
behind an employer’s pretext. Baralt v. Nationwide Mut. Ins., 251 F.3d 10, 18–19 (1st
Cir. 2001) (jury verdict for the plaintiffs in an age discrimination case set aside be-
cause, despite evidence of pretext, the record contained no evidence of age discrimi-
nation); see Bonefont-Igara Videz v. Int’l Shipping Corp., 659 F.3d 120, 125 (1st Cir.
2011).
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
In proving pretext under either state or federal law, the plaintiff must do more than
cast doubt on the appropriateness or wisdom of the employer’s articulated reason.
Rather, “[i]n assessing pretext, a court’s focus must be on the perception of the deci-
sionmaker, that is, whether the employer believed its stated reason to be credible.”
Adamson v. Walgreens Co., 750 F.3d 73, 79 (1st Cir. 2014) (internal quotations omit-
ted); see also Mahon v. Bos. Pub. Sch., 86 Mass. App. Ct. 1110 (2014).
One line of cases stands for the proposition that a plaintiff may not prevail simply by
attacking the employer’s business judgment as “[c]ourts may not sit as super personnel
departments, assessing the merits—or even the rationality—of employers’ nondiscrim-
inatory business decisions.” Adamson v. Walgreens Co., 750 F.3d at 81 n.5 (internal
quotations omitted). However, another line of cases supports the view that pretext can
be proven by attacking the reasonableness of the employer’s asserted business deci-
sions. Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1356 n.1 (2015) (Alito, J.,
concurring); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Wexler v.
White’s Fine Furniture, Inc., 317 F.3d 564, 576–77 (6th Cir. 2003); Kelley v. Correction
Med. Servs., 707 F.3d 108, 118 (1st Cir. 2013) (calculated overreaction to plaintiff’s
alleged wrongdoing). Pretext may be shown by weaknesses and implausibilities in the
employer’s justifications. Adamson v. Walgreens Co., 750 F.3d at 79.
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. However, conflicting per-
formance reviews may be insufficient to prove pretext. Pierson v. Stembridge, 27
Mass. L. Rptr. 274 (Super. Ct. 2010) (citing Batchelder v. Andover Police Dep’t, 71
Mass. App. Ct. 1120 (2008)). 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 em-
ployer’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
On the other hand, the fact that a plaintiff was recently hired may indicate an unlike-
lihood that their termination was due to age. The decision maker’s age might indicate
a lack of discriminatory intent. Older workers need not be hired or treated preferen-
tially simply to remedy an imbalance in the employer’s workforce. G.L. c. 151B,
§ 4(19), ¶ 5. Moreover, statistics reflecting an employer’s practice of retaining older
workers in a layoff may help demonstrate lack of discriminatory animus.
Mixed-Motive Analysis
The U.S. Supreme Court has rejected the mixed-motive analysis for ADEA claims
involving private litigants. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (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”); see Ford v. Mabus, 629 F.3d 198, 203–07 (D.C. Cir. 2010). While the
Supreme Judicial Court has yet to decide whether it will follow the Gross rule, it is
assumed that the analysis continues to apply to Chapter 151B claims. See Diaz v.
Jiten Hotel Mgmt., Inc., 671 F.3d 78, 83 (1st Cir. 2012) (interpreting Haddad v. Wal-
Mart Stores, Inc., 455 Mass. 91, 114 (2009), as implicitly affirming ongoing validity
of mixed-motive framework in all Chapter 151B cases); see also DiIorio v. Wil-
lowbend Country Club, Inc., 33 M.D.L.R. at 167.
To reach the mixed-motive analysis the “plaintiff must show, at a minimum, ‘that
there was differential treatment in an employment action and that the adverse em-
ployment decision was caused at least in part by a forbidden bias.’” Rossiter v. Pot-
ter, No. 02-12192, 2005 WL 1288063, at *3 (D. Mass. May 23, 2005) (quoting Hill-
strom v. Best W. TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003)). Under Massachusetts
law, the mixed-motive analysis may be accessed only by a showing of direct, or
strong, evidence that discrimination played a motivating role in the employment de-
cision. See Wynn & Wynn, PC v. MCAD, 431 Mass. 655, 666–67 (2000), overruled
on other grounds by Stonehill Coll. v. MCAD, 441 Mass. 549 (2004); Connolly v.
Suffolk Cty. Sheriff’s Dep’t, 62 Mass. App. Ct. 187, 194 (2004). Circumstantial evi-
dence of discrimination alone may arguably be sufficient to invoke the mixed-motive
analysis. Haddad v. Wal-Mart Stores, Inc., 455 Mass. at 114 (dicta construing
G.L. c. 151B in a gender discrimination claim).
Satisfaction of the plaintiff’s burden “shifts the burden of persuasion to the employer,
who . . . must establish that he would have reached the same decision regarding the
plaintiff even if he had not taken the proscribed factor (age) into account.” Febres v.
Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000). The mixed-motive
analysis thus differs from the burden-shifting analysis, in that the burden of proof is
actually transferred to the employer.
Practice Note
Unlike Title VII, under the ADEA, defendants do not buy some immediate
liability by admitting that one of the factors (though not the motivating
one) for the employment action at issue was an individual’s age. Title VII
provides for certain equitable relief and attorney fees upon evidence that
one of the factors an employer used in rendering its decision was an im-
permissible one, i.e., that one of the reasons for the decision was the in-
dividual’s race, color, gender, etc., even if there is evidence that the em-
ployer would have made the same decision anyway. See 42 U.S.C.
§ 2000e-2(m). This provision does not apply to the ADEA. Under the
ADEA, even if one of the factors for the employment decision was the in-
dividual’s age, there is no liability as long as it was not the “but for” cause
of the decision.
Age discrimination and expense reduction are sometimes related. Stereotypes about
older workers and the resources they require may dovetail with pressures on manag-
ers to pare down expenses. A plaintiff’s lawyer should attempt to frame the issues
such that it is clear that recovery is sought for actions based on age-related stereo-
types or animus and not simply for expense reduction.
F.2d 36, 38 (1st Cir. 1986). Nevertheless, it may be advisable for a plaintiff’s lawyer
to suggest to employees facing an RIF to volunteer to be demoted or to take a pay cut
in order to save their jobs. Plaintiff’s counsel may argue that, if the motive of an 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 Pecuari-
as, 929 F.2d 814, 823 (1st Cir. 1991) (no evidence of discrimination where, in con-
text of RIF, employer offered to retain older workers with reduction of salary); Es-
trada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 15 (1st Cir. 1988) (in a political dis-
crimination case, employer demoted plaintiff even though it had the option to transfer
the plaintiff to known vacant positions instead).
Requests about retirement plans, and suggestions to retire, may indicate discrimina-
tory bias. Davidson v. City of Pittsfield, 84 Mass. App. Ct. 1131 (2014); Calhoun v.
Acme Cleveland Corp., 798 F.2d 559, 562–63 (1st Cir. 1986); Carlton v. Mystic
Transp. Inc., 202 F.3d 129, 136 (2d Cir. 2000) (even single suggestion to retire may
be probative when considered along with other evidence); Radabaugh v. Zip Feed
Mills, Inc., 997 F.2d 444, 450 (8th Cir. 1993) (suggestion after termination that the
plaintiff consider retiring). However, isolated or ambiguous remarks tending to sug-
gest animus based on age may not be sufficient, standing alone, to prove an employ-
er’s discriminatory intent even if such remarks are made by the decision makers but
are unrelated to the decision-making process. Rooney v. Bank of Am., No. 12–11173–
TSH, 2014 WL 1347124, at *8 (D. Mass. Apr. 3, 2014); see also Canovas v. Univ. of
Mass. Med. Sch., 83 Mass. App. Ct. 1123 (2013).
Where an employer seeks releases in connection with exit incentives or other em-
ployment 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 em-
ployees to determine whether age discrimination was a factor in their terminations or
exit incentives.
According to the Supreme Court, age and pension status are analytically distinct
concepts. Thus, an employer is permitted to make decisions because of an employ-
ee’s pension status, even where pension status is itself based on age, and even where
younger employees are treated better than older employees. Ky. Ret. Sys. v. EEOC,
554 U.S. 135, 142–43 (2008) (no ADEA violation where employee received a lower
pension because he became disabled after he turned fifty-five years old and where he
would have received more had he become disabled at a younger age).
The fact that a minimum age is set for an attainment of retirement benefits is not a
violation of the ADEA. 29 U.S.C. § 623(1). 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.
Employers have a legitimate interest in succession planning. Boston v. Blue Cross &
Blue Shield of Kan., Inc., 431 Fed. App’x 763, 767 (10th Cir. 2011) (“compliance
with the ADEA and succession planning need not be mutually exclusive”). Succes-
sion plans may focus on use of nondiscriminatory factors such as expected longevity
with the company. Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 800–01 (6th
Cir. 2013) (“An inquiry about how long an employee intends to work if hired has
been held to reflect a legitimate employer concern that is analytically distinct from
age.”). However, a succession plan that focuses on age when computing an employ-
ee’s potential longevity may evidence age discrimination. Sharp v. Aker Plant Servs.
Grp., Inc., 726 F.3d at 799–801.
§ 2.2 DEFENSES
Practice Note
An age discrimination strategy checklist for defense attorneys is included
as Checklist 2.1.
To establish a “reasonable factor” defense, an employer must show that the employ-
ment practice was both reasonably designed to further or achieve a legitimate busi-
ness purpose and administered in a way that reasonably achieves that purpose in light
of the particular facts and circumstances that were known, or should have been
known, to the employer. 29 C.F.R. § 1625.7(e). However, this defense will not excuse
facially discriminatory conduct. 29 C.F.R. § 1625.7. Moreover, it will not justify dis-
criminatory policies, practices, and mandates, including a state statute, that will conflict
with the ADEA. See EEOC v. Massachusetts, 987 F.2d 64, 73–74 (1st Cir. 1993).
Employers may also assert the defense of a good cause. This defense requires affirm-
ative proof that the decision was not only motivated by reasons other than the em-
ployee’s age but the action was supported by “good cause.” 29 U.S.C. § 623(f)(3).
Given that, in the typical circumstantial case of age discrimination, the defendant
merely has a burden of production as to evidence of its legitimate and nondiscrimina-
tory reason for the disputed employment action, the affirmative defense of “good
cause” is seemingly superfluous. Simply put, in these cases the defendant does not
have to prove it was motivated by good cause but may simply produce evidence of its
legitimate motivation. A defense of good cause should be considered, however, in
cases where direct evidence of discrimination is asserted.
Similarly, employers generally may implement the terms of bona fide retirement,
pension, insurance, and other employee benefit plans without fear of liability. How-
ever, adherence to such plans will violate the ADEA when they mandate retirement,
unless the employee has been a bona fide executive or key management employee
and is vested in a “substantial” employee retirement plan. 29 U.S.C. § 631(c)(1);
G.L. c. 151B, § 4(17)(b); see also Morrissey v. Bos. Five Cents Sav. Bank, 54 F.3d 27
(1st Cir. 1995); Passer v. Am. Chem. Soc’y, 935 F.2d 322 (D.C. Cir. 1991). Moreover,
employers must comply with the provisions of the Older Workers Benefit Protection
Act, 29 U.S.C. §§ 623, 626, 631, in implementing such plans.
In any event, in order to properly assert and support a defense based upon any em-
ployment plan, employers need to remember to implement these plans consistently.
Arbitrary implementation will permit plaintiffs to argue the action is not justified by
the plan and that the action is really subterfuge for discrimination.
Business Justification
Neutral Criteria
Using neutral criteria to implement adverse employment actions, such as a layoff or
termination in the face of corporate restructuring, will also provide a defense to a
claim of age discrimination. See Conkwright v. Westinghouse Elec. Corp., 933 F.2d
231, 235 (4th Cir. 1991) (endorsing reliance on “an ostensibly neutral, merit-based
system, its internal rating system”); see also Goclowski v. Gen. Elec. Co., 19
M.D.L.R. 42, 45 (1997) (following a written RIF policy, including applying the RIF
criteria, evidence that the complainant was “selected for layoff because, overall, his
work performance was . . . among the weakest . . . (thus the Respondent) . . . present-
ed substantial credible evidence that the reason the Complainant was selected for
layoff was poor work performance and business necessity, [and] Respondent has
clearly articulated legitimate, nondiscriminatory reasons for its actions”). But see
§ 2.1.2(a), Disparate Impact, above.
Similarly, relying on seniority as the basis for an employment action, such as imple-
menting layoffs in reverse order of seniority, will bolster an employer’s defense and
support its “legitimate and nondiscriminatory” reason for the complained-of action.
See Cruz v. Bristol-Myers Squibb Co., PR, 699 F.3d 563, 571 (1st Cir. 2012) (finding
a “ranking system that considered only . . . professional skills and seniority” to be
age neutral).
Finally, job actions based upon neutral and uniformly applied employment policies
and practices, such as performance evaluations, will also offer a defense to a claim of
age discrimination.
Age
As strange as it may seem, emphasizing the ages of those involved may also assist in
defending against a claim of age discrimination. For example, if those involved in the
decision-making process are as old as or older than the plaintiff, this fact may mili-
tate against a presumption that these individuals were age biased in implementing the
complained-of action. See LaGrant v. Gulf & W. Mfg. Co., 748 F.2d 1087 (6th Cir.
1984). Similarly, when the replacement is a few years younger or older than the ter-
minated plaintiff, a claim that the employer had an impermissible motive in institut-
ing the action rings hollow. See Williams v. Raytheon Co., 220 F.3d 16 (1st Cir. 2000)
(replacement less than five years younger than the plaintiff fails to support prima
facie case); Grubb v. W.A. Foote Mem’l Hosp., Inc., 741 F.2d 1486, 1498 (6th Cir.
1984), vacated on other grounds, 759 F.2d 546 (6th Cir. 1985).
A violation is willful if the employer knew or showed reckless disregard for the mat-
ter of whether its conduct was prohibited by the ADEA. While liquidated damages
are punitive in nature, the plaintiff does not need to show that the employer’s conduct
was outrageous. Hazen Paper Co. v. Biggins, 507 U.S. 604, 614–18 (1993).
The ADEA has been interpreted to preclude the award of damages for pain and suf-
fering and emotional distress. See Commissioner v. Schleier, 515 U.S. 323, 326
(1995); Collazo v. Nicholson, 535 F.3d 41, 44–45 (1st Cir. 2008). A plaintiff’s lawyer
may argue that 29 U.S.C. § 626(b), which permits “legal” remedies, should be inter-
preted to allow for emotional distress damages. However, some courts in other jurisdic-
tions have recognized an exception under the ADEA and held that pain and suffering
and medical expenses may be available for retaliation claims. See Marinelli v. Potter,
661 F. Supp. 2d 69, 82–83 (D. Mass. 2009) (citing Moskowitz v. Trs. of Purdue Univ.,
5 F.3d 279, 283 (7th Cir. 1993); Lyons v. Hader–Seitz, Inc., No. 03-C-645, 2005 WL
2077358, at *1 (E.D. Wis. Aug. 19, 2005)). Awards of attorney fees are discretionary
when the plaintiff is a federal employee. Marinelli v. Potter, 661 F. Supp. 2d at 84 n.19.
If the case is tried before the MCAD and not in court, the MCAD 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. However, the MCAD may not award multiple damages.
With respect to reinstatement, that remedy might be available for claims tried at the
MCAD (G.L. c. 151B, § 5) but might not be available for claims initially litigated in
court under G.L. c. 151B. Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 127–
29 (2014). As the Supreme Judicial Court explained, G.L. c. 151B provides “two
largely independent avenues for redress of violations . . . one through the MCAD
(G.L. c. 151B, §§ 5–6), and the other in the courts (G.L. c. 151B, § 9).” Fernandes v.
Attleboro Hous. Auth., 470 Mass. at 128 (internal quotations omitted). While the Su-
preme Judicial Court acknowledged that reinstatement is an available remedy in the
context of an MCAD administrative proceeding under G.L. c. 151B, § 5, it noted that
“[t]he remedies available under G.L. c. 151B, §§ 5 and 9, differ.” Fernandes v. Attle-
boro Hous. Auth., 470 Mass. at 128 (internal quotations omitted). The ADEA permits
orders of reinstatement.
While both the ADEA and Chapter 151B provide for the award of attorney fees, it
appears that a plaintiff may be more likely to receive fees under the “catalyst theory”
for a state claim than a federal claim. See, e.g., Ferman v. Sturgis Cleaners, Inc., 481
Mass. 488, 491–92 & n.9 (2019) (addressing the standard for determining an award
of attorney fees for wage claims under G.L. c. 149 and G.L. c. 151). However, it is
not certain that the catalyst theory will be applied to Chapter 151B.
Special rules govern the initiation of claims involving federal employees. See Ma-
ziarz v. Brennan, No. 15-30098-MAP, 2016 WL 7799647, at *3–4 (D. Mass. Aug. 3,
2016) (discussing option of federal employees to bypass administrative remedies/
requirements). Such employees should notify an EEO counselor within forty-five
days of the discrimination. 29 C.F.R. § 1614.105(a). Other deadlines and require-
ments are imposed on federal employees after this initial deadline, and they should
be carefully researched. See Rossiter v. Potter, 357 F.3d 26 (1st Cir. 2004); Tapia-
Tapia v. Potter, 322 F.3d 742, 744 (1st Cir. 2003).
There are many complicated issues relating to the limitations period in discrimina-
tion cases that are beyond the scope of this chapter. However, a few general rules
should be noted. The limitations period for filing a charge of discrimination begins to
run once an employee receives unequivocal notice of the asserted adverse employ-
ment action. See Del. State Coll. v. Ricks, 449 U.S. 250 (1980) (termination notice
needed to be explicit and final in order to trigger limitations period); Wheatley v. Am.
Tel. & Tel. Co., 418 Mass. 394, 398 (1994). This does not necessarily mean that the
period commences when the job action occurs—it can actually commence before that
time. Indeed, if an individual is unequivocally notified that a job action is scheduled to
occur on some future date, the limitations period will begin to run from the date such
notice is received. Wheatley v. Am. Tel. & Tel. Co., 418 Mass. at 398–400. According-
ly, defense attorneys should be sure to review when the employee became aware that
the action was going to occur. If unequivocal notice of the complained-of conduct
was received outside of the limitations period, the charge may be untimely. On the
other hand, a plaintiff’s attorney should be mindful that, even after an employee has
been terminated or has been informed of their termination, the limitations clock may
be restarted when the employee first discovers or first has reason to discover that
their discharge was discriminatory. Doctrines of continuing violations, equitable toll-
ing, 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. Under some circumstances, submission of an EEOC intake questionnaire may
satisfy the requirements for filing a charge. Fed. Express Corp. v. Holowecki, 552
U.S. 389 (2008).
A plaintiff seeking to file a civil action under G.L. c. 151B must remove the pending
case from the MCAD. The plaintiff may remove their claim from the MCAD after
ninety days have elapsed since the charge was filed (and earlier if the MCAD per-
mits). G.L. c. 151B, § 9. A defendant, however, cannot remove an employment case
from the MCAD. See Stonehill Coll. v. MCAD, 441 Mass. 549, 565–66 (2004)
(“[s]hould the complainant choose to remain within the MCAD, then both parties are
subject to the formal administrative process”). Removal is accomplished simply by
writing to the MCAD, informing it that a civil action has been filed and asking the
MCAD to dismiss the charge so that the plaintiff may pursue a civil action.
G.L. c. 151B, § 9. 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 the right to remove a
case from the MCAD once a public hearing begins because plaintiffs are required at
that time to sign a waiver of the right to a civil action.
After the MCAD has held a public hearing and the Full Commission has issued a
final order, the plaintiff or the defendant may seek a G.L. c. 30A judicial review.
G.L. c. 151B, § 6; see also Temple Emanuel of Newton v. MCAD, 463 Mass. 472, 479
(2012). The party seeking judicial review must do so within thirty days after the service
of the MCAD’s final order. G.L. c. 151B, § 6.
The plaintiff’s deadline for filing a civil action under G.L. c. 151B is three years
from the date of 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.
Under the ADEA, a civil action may be filed when sixty days has elapsed after the
filing of the EEOC complaint. 29 U.S.C. § 626(d). Moreover, plaintiffs should wait
at least sixty 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 G.L. c. 151B limitations
period has run. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 759–60
(1979); Ciccone v. Textron, Inc., 651 F.2d 1, 1–2 (1st Cir. 1981); Bousquet
v. PolyForm Corp., 401 Mass. 1002, 1002–03 (1987); Clark v. Am. Home
Foods Div., 34 F.E.P. 813, 814 (D. Mass. 1982).
The MCAD may be a convenient venue for use in performing some investigation
prior to committing to a civil action. On a case-by-case basis, the MCAD will deter-
mine whether parties to a claim are entitled to conduct predetermination discovery.
(Note that the standing order specifically providing for such a determination on a
case-by-case basis was revoked effective June 3, 2014. See Standing Order of the
Commissioners Regarding Pre-Determination Case Process, Feb. 20, 2007, available
at http://www.mass.gov/mcad/docs/press-releases/2007-02-20-pr-standing-order-
revoked.pdf.)
Multiple damages are not awarded in the MCAD; they are awarded only if a civil
action is pursued. On the other hand, 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).
If a civil action is filed, the plaintiff secures the right to a jury trial. There is no jury
trial provided at the MCAD. 29 U.S.C. § 626(c)(2); G.L. c. 151B, § 9.
Where the parties have signed a valid mandatory arbitration provision, arbitration
will be compelled; but the MCAD may elect to continue with its own independent
investigation of a claim. Joulé, Inc. v. Simmons, 459 Mass. 88 (2011); see also
MCAD Policy 96-1(I)(1)(d). In such a situation, the complaining party may not in-
tervene in the MCAD action or participate as a litigant or a party; however, the com-
plaining party may still provide evidence to the MCAD. Joulé, Inc. v. Simmons, 459
Mass. at 97–98. The MCAD continues to have the authority to award remedies spe-
cific to the complaining party under these circumstances. Joulé, Inc. v. Simmons, 459
Mass. at 95.
At the MCAD, pro se complainants are provided the opportunity to receive free legal
guidance. The MCAD has shown some willingness to award substantial emotional
distress awards. Finally, the MCAD may prove to be a better forum when 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 or a court of general
jurisdiction.
As discussed above, reinstatement is a remedy for claims tried at the MCAD, but
might not be available for claims initially litigated in court. Fernandes v. Attleboro
Hous. Auth., 470 Mass. 117, 127–29 (2014). Victims of discrimination for whom
reinstatement is a priority may wish to keep their cases at the MCAD and not remove
the case to court. Fernandes v. Attleboro Hous. Auth., 470 Mass. at 127–29.
Assuming that a civil action is filed, the next question is whether to pursue a
G.L. c. 151B claim, an ADEA claim, or both. Generally, G.L. c. 151B provides
plaintiffs with many advantages over those of the ADEA. Chapter 151B covers a
wider group of private and public employers, provides for greater damages, and pro-
vides, generally, for less onerous burdens of proof. Chapter 151B should be used
when individuals are named as respondents.
An ADEA claim in federal court may permit the employee to introduce evidence that
would be excluded in state court proceedings. Gargiulo v. Baystate Health, Inc., 826
F. Supp. 2d 323 (D. Mass. 2011) (refusing to adopt state medical peer review privi-
lege in age discrimination claim before the court pursuant to diversity jurisdiction). A
federal court action will generally provide the opportunity for a speedier trial than
the state court will permit and is more likely to be overseen by a single judge.
While G.L. c. 151B and the ADEA may be asserted together in a complaint, assert-
ing G.L. c. 151B claims alone may facilitate the opportunity to pursue the case in
Superior Court without the risk of removal to federal court. Many plaintiffs’ lawyers
think that the state court is more favorable to employment discrimination claims,
while defense counsel prefer to litigate such actions in federal court. Accordingly,
defense counsel should quickly and carefully review state court complaints asserting
age discrimination in order to seriously consider removal to federal court.
The U.S. Supreme Court has since clarified its stance on arbitration of ADEA claims
as mandated by collective bargaining agreements. In 14 Penn Plaza, LLC v. Pyett,
556 U.S. 247 (2009), the Court held that “a provision in a collective-bargaining
agreement that clearly and unmistakably requires union members to arbitrate ADEA
claims is enforceable as a matter of federal law.”
prior to executing the agreement.” 29 U.S.C. § 626(f)(1)(B), (E); see American Air-
lines, Inc. v. Cardoza, 133 F.3d 111 (1st Cir. 1998) (employers must directly advise
employees to consult a lawyer in order to obtain a valid waiver of rights under the
ADEA). Such waivers will be valid only if they are obtained in exchange for “con-
sideration in addition to anything of value to which the individual already is entitled.”
29 U.S.C. § 626(f)(1)(D).
Waivers will not be considered knowing and voluntary unless an employee is given
up to twenty-one days to consider the terms of the waiver or, if part of an employ-
ment termination program, up to forty-five days to consider it. 29 U.S.C.
§ 626(f)(1)(F)(i)(ii). Additionally, employees must be provided seven days following
the execution of any such waiver to revoke it. 29 U.S.C. § 626(f)(1)(G). The law does
not permit the parties to waive, shorten, or forgo the seven-day revocation period. 29
C.F.R. § 1625.22(e)(5).
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