Age Discrimination Claims in Massachusetts: What Employers Need to Know About M.G.L. c. 151B

Massachusetts Business Attorney · Employment Law

Age discrimination claims usually surface after a layoff, a reorganization, or the termination of a long-time employee. Many business owners assume the federal Age Discrimination in Employment Act (ADEA) sets the rules. In Massachusetts, it often does not. Chapter 151B, the state anti-discrimination statute, reaches smaller employers, uses a different causation standard, and allows remedies the federal law does not.

This article explains how a Massachusetts age claim actually works, where employers are most exposed, and what to do before a hiring, layoff or termination decision is made.

What Massachusetts law prohibits

G.L. c. 151B, § 4(1B) makes it unlawful for an employer, because of a person’s age, to refuse to hire or employ, to discharge, or to discriminate in compensation or in the terms, conditions or privileges of employment. Two definitions in § 1 set the scope:

• Who is protected. “Age” is defined as a duration of time since birth of more than forty years. In practical terms, the statute protects workers over 40.
• Who is covered. The definition of “employer” excludes employers with fewer than six persons in their employ. A business with six or more employees is generally covered.

The central question in nearly every case is whether an adverse decision against a protected employee was made because of age.

State law versus the federal ADEA

Employers often have exposure under both laws, but the differences matter.

• Size of employer. The ADEA applies to employers with twenty or more employees for each working day in twenty or more calendar weeks in the current or preceding calendar year (29 U.S.C. § 630(b)). Chapter 151B applies at six. A business with, say, twelve employees may have no federal age exposure at all but full exposure under state law.
• Causation. In Gross v. FBL Financial Services, Inc. (2009), the U.S. Supreme Court held that an ADEA plaintiff must prove that age was the “but-for” cause of the adverse action, and that the burden of persuasion does not shift to the employer in a mixed-motive case. Massachusetts has not adopted Gross for c. 151B. The Supreme Judicial Court (SJC) uses its own standard, described below.
• Remedies. Chapter 151B allows remedies, including punitive damages, that are not available under the ADEA.

How a Massachusetts age claim is proved

Most age claims rely on circumstantial evidence and follow a three-stage framework that the SJC described in Bulwer v. Mount Auburn Hospital (2016):

1. Prima facie case. The employee must first show a basic case of discrimination. In a typical termination case, that includes showing the employee was over 40, was performing acceptably, was terminated, and was replaced by someone substantially younger.
2. Employer’s reason. The employer then must articulate a legitimate, nondiscriminatory reason for the decision. This is a burden of production, not persuasion.
3. Pretext. The employee then must produce evidence that the stated reason is not the real reason.

Two features of Massachusetts law make this framework harder on employers than its federal counterpart.

“Pretext only”

In Bulwer, the SJC repeated that “Massachusetts is a pretext only jurisdiction.” At summary judgment, an employee does not need separate evidence of age bias. The employee need only present evidence from which a reasonable jury could infer that the employer’s stated reasons were not the real reasons. The court also described summary judgment as a disfavored remedy in disparate treatment cases. An employer whose explanation shifts over time, or is contradicted by its own records, faces real risk of a jury trial.

“Determinative cause,” not “but-for”

Many summaries say Massachusetts age claims require “but-for” causation. That is the federal ADEA rule under Gross, not the c. 151B rule. In Lipchitz v. Raytheon Co. (2001), the SJC held that in an indirect evidence case the employee must prove that discriminatory animus was the “determinative cause” of the decision. The court explained that this means discrimination was a material and important ingredient in causing the decision. It does not mean age was the only cause. Lipchitz also held that if a jury finds the employer’s stated reason false, it may, but need not, infer that the real reason was discrimination. The employee still bears the ultimate burden of proving discrimination.

How much younger is “substantially younger”?

In Knight v. Avon Products, Inc. (2003), the SJC held that an age gap of less than five years between the employee and the replacement is, by itself, too insignificant to support a prima facie case. That is not a safe harbor. The court said the employee may still have a triable claim if other evidence suggests the termination occurred in circumstances raising a reasonable inference of age discrimination.

Reductions in force and layoffs

In a layoff, who was let go, who was kept, and each person’s age and record all become evidence.

In Sullivan v. Liberty Mutual Insurance Co. (2005), the SJC addressed how a laid-off employee proves a prima facie case when no one was hired to replace her. The court held the employee may do so by producing some evidence that the layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. Retaining lower-rated, similarly situated employees outside the protected class is the classic example.

Sullivan also offers employers some reassurance. The court said the retention of a single younger employee, without more, was not enough to raise an inference of age discrimination in a large reduction. It said the employer was under no legal requirement to lay off the lowest-rated employees. And it said the court’s task is not to second-guess the soundness of business decisions, but to make sure they do not mask discrimination. The employer in that case prevailed.

Practical steps for a reduction in force:

• Write down the business reason and the selection criteria before choosing names. Criteria chosen after the list is drawn look like justification.
• Use criteria that can be measured and explained. Subjective factors such as “flexibility” or “long-term fit” are lawful but invite scrutiny when applied to older workers.
• Compare the comparators. Before finalizing, review who is being kept in each affected group. If lower-rated younger employees are retained over higher-rated older ones, be sure the reason is documented and legitimate.
• Keep the explanation consistent. Under the pretext-only rule, inconsistent reasons given to the employee, to the MCAD and in litigation can be enough to reach a jury.

Protecting your business in hiring and termination decisions

Most age claims are won or lost on the employer’s records. A few habits reduce risk considerably:

• Watch the language. Job postings and interview notes that ask for “digital natives,” “recent graduates” or “high energy” can be read as age proxies. Comments about retirement plans, “slowing down” or being “set in their ways” are damaging evidence.
• Keep honest performance reviews. In Bulwer, widely differing performance evaluations helped the employee create a fact question about pretext. An employee with years of positive reviews who is suddenly terminated for performance is a difficult case to defend.
• Be careful after a complaint. An employee who complains about age bias is protected from retaliation, and a retaliation claim can succeed even if the underlying discrimination claim fails. See our article on retaliation claims for Massachusetts employers.
• Consider overlapping claims. Older employees sometimes raise medical issues or accommodation requests at the same time. See our article on disability discrimination and reasonable accommodation in Massachusetts.

Severance agreements and releases of age claims

Many employers offer severance in exchange for a release. For a release to waive federal age claims, the Older Workers Benefit Protection Act amendments to the ADEA (29 U.S.C. § 626(f)) set minimum requirements. The waiver must:

• be part of a written agreement written in a manner the employee can understand;
• specifically refer to rights or claims under the ADEA;
• not waive rights or claims that arise after it is signed;
• be given in exchange for something of value beyond what the employee is already entitled to;
• advise the employee in writing to consult an attorney before signing;
• give the employee at least 21 days to consider it, or at least 45 days if the waiver is requested in connection with an exit incentive or other group termination program; and
• allow the employee at least 7 days after signing to revoke it, with the agreement not becoming effective until that period has passed.

For a group termination or exit incentive program, the employer must also give written disclosures at the start of the 45-day period. These include the class, unit or group covered, the eligibility factors and time limits, and the job titles and ages of all individuals eligible or selected, along with the ages of those in the same job classification or organizational unit who were not eligible or selected.

A release that misses any of these requirements may not waive the federal age claim. The statute also provides that no waiver can affect the EEOC’s enforcement rights or interfere with an employee’s right to file a charge with the EEOC. A release meant to cover state claims should expressly reference Chapter 151B as well.

Deadlines and remedies under Chapter 151B

The MCAD filing deadline. A complaint with the Massachusetts Commission Against Discrimination must be filed within 300 days after the alleged act of discrimination (c. 151B, § 5). For what happens after a complaint is filed, see our companion article on responding to an MCAD complaint as a Massachusetts employer.

Moving to court. Under c. 151B, § 9, an employee may file a civil action 90 days after filing with the MCAD, or sooner if a commissioner assents in writing, and not later than three years after the alleged unlawful practice occurred.

Remedies. Section 9 allows a court that finds for the employee to award actual and punitive damages, and requires an award of reasonable attorney’s fees and costs to a prevailing employee unless special circumstances would make that unjust. Chapter 151B does not contain the damages caps found in some federal discrimination statutes. Section 9 also contains a provision specific to age discrimination in employment: if the court finds the practice was committed with knowledge, or reason to know, that it violated § 4, recovery may be two to three times actual damages.

Punitive damages are not automatic. In Haddad v. Wal-Mart Stores, Inc. (2009), the SJC held that punitive damages under c. 151B may be awarded only where the defendant’s conduct is outrageous or egregious.

Common age discrimination scenarios

• The long-tenured employee terminated for “performance.” Risk rises when the performance problem appears suddenly, after years of positive reviews, and the replacement is substantially younger.
• The layoff that falls mostly on older workers. The key questions are what criteria were used, whether they were applied consistently, and who was retained.
• The restructured job. An older employee’s position is eliminated, and a “new” role with similar duties is soon filled by a younger hire.

Frequently asked questions

Does Massachusetts age discrimination law apply to small businesses?

Generally yes, if the business has six or more employees. Chapter 151B excludes employers with fewer than six persons in their employ. The federal ADEA, by contrast, applies only to employers with twenty or more employees.

Does an employee have to prove age was the “but-for” cause under Massachusetts law?

That is the federal ADEA standard under Gross v. FBL Financial Services. Under c. 151B, the SJC in Lipchitz v. Raytheon required proof that discriminatory animus was the “determinative cause,” meaning a material and important ingredient in the decision, not necessarily the only cause.

How long does an employee have to file an age discrimination complaint?

A complaint with the MCAD must be filed within 300 days of the alleged discrimination. A civil action under c. 151B, § 9 must be filed no later than three years after the alleged unlawful practice.

Getting help with age discrimination risk

Most age discrimination exposure is created before any claim is filed, in how a decision is made, documented and explained. If you are planning a layoff, preparing a severance agreement, or have received an MCAD complaint, see our Massachusetts business law services or contact our office at 978-273-8337.

About the Author

Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises employers on discrimination claims, MCAD complaints, terminations and severance agreements. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.

ABOUT THIS ARTICLE

This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.