A recent unpublished decision by the Massachusetts Appeals Court found that an employee could not establish a case for age discrimination under Massachusetts law when his entire job class was eliminated as part of a reduction in force. See Richard A. Porio v. Department of Revenue, 13-P-1621, (memorandum and order pursuant to Rule 1:28, August 27, 2015). Plaintiff is an employee who was laid off when his job class was eliminated, while other, younger members of his same job classification were “provisionally promoted” to a higher job class prior to the cuts. The court held that plaintiff could not establish a prima facie case of age discrimination — that is, his termination did not result in a reasonable presumption of age discrimination sufficient for the court to allow him to proceed with his claim against his employer. In order to raise that presumption, plaintiff would have had to show evidence that the employer failed to treat age neutrally in deciding which positions to eliminate, which the plaintiff failed to do.

The court also found that plaintiff could not proceed on a “disparate impact” theory. Disparate impact does not require a discriminatory motive, but instead focuses on business practices that have the effect of excluding a protected class of people from hiring or promotions. Generally, a plaintiff must show statistical evidence that a particular business practice, usually a testing or measuring procedure, has the same effect as intentional discrimination, and is not a practice that is related to job performance. The court did not specifically apply the facts of plaintiff’s case to this analysis, but instead found that the “fundamental premise” of disparate impact theory does not apply to this scenario, where an entire group of employees is affected by a reduction plan.

Age discrimination suits in Massachusetts can have costly impacts on businesses. Even in the case discussed above, which was ultimately a win for the plaintiff’s employer, the parties were involved in proceedings from 2002 to 2015. Massachusetts businesses are subject to both federal and state age discrimination statutes, and may be liable if age was a contributing factor to a decision at any stage in the employment process, including hiring, promotion, and termination. In addition tothe time and cost of litigation, if found liable, a business may need to pay extensive damages, including emotional distress and treble damages. Furthermore, employers may be hit with fines and other administrative penalties through the Massachusetts Commission Against Discrimination (MCAD).

America's workforce is growing older, and will continue to do so for the foreseeable future. Now more than ever, employers should begin to think about mitigating the risk of an age discrimination lawsuit through planning and development of employment practices. Whether you are facing a lawsuit or trying to avoid one, an experienced business attorney can help mitigate potential losses in a way that is right for your business.