Age Discrimination is Illegal.

We Help Those Discriminated Against in the Workplace on the Basis of Their Age

State and federal law prohibit discrimination on the basis of a person’s age. It is illegal for an employer to take adverse employment action because an employee is 40 years old or over. Detecting age-related discrimination can prove difficult, however.

Illegal Age Discrimination Conduct – Seeking “Fresh Ideas”

Employers will often justify age-related decisions in the interest of infusing the workforce with “fresh ideas” or more vibrant employees. These terms often, though certainly not always, mask a discriminatory bias against older employees based on the stereotype that they lack these qualities.

Can Companies Fire Older Workers to Save Money?


An employer also cannot make decisions regarding pay, job assignments or benefits when the only justification is age. Because older employees often have more seniority at a company than younger employees, they are often higher on the pay scale. While a company is not prohibited from ordering layoffs to reduce payroll, it cannot do so in a manner that has a disproportionately harmful effect on older employees.

In most cases, an employee cannot point to direct evidence of age discrimination, such as an admission that a decision was taken due to the employee’s age, and thus discrimination must be shown through circumstantial evidence. There is a well-established three-part test that courts apply in evaluating a claim of discrimination under these circumstances.

What is Required in an Age Discrimination Case?

First, the employee must show that: (1) he or she is 40 years or over; (2) he or she is qualified to perform the duties of the position; (3) he or she suffered an adverse employment action; and (4) he or she was replaced by someone significantly younger. Second, assuming the employee can satisfy the first part of the test, the employer must then offer a valid, non-discriminatory reason for its employment decision. Third, once the employer offers the valid, non-discriminatory reason, the employee must show that this reason is not the true reason, but only offered to conceal the true discriminatory motive (i.e. a “pretext”).

Can I Bring an Age Discrimination Case in Massachusetts if a Younger Worker Was Promoted Instead of Me?

Yes, but it may be difficult to prove that age discrimination occurred.

Generally speaking, outside of the union workforce, managers are not restricted in making promotional decisions.  Seniority, in these circumstances, does not need to be respected.

In these circumstances, in order to establish an age discrimination case, there must be more involved than simply the fact that a younger worker was promoted.  For instance, did you hear the managers discuss that they wanted to have a younger person in the position?  You need to present facts that can establish that a jury could find that you were passed over because of your age, not simply that a younger employee was promoted over you.

Can I Bring an Age Discrimination Case in Massachusetts if I Was Not Hired?

Yes, although these cases are difficult

In most situations, employers cannot simply refuse to hire workers because they are older.  Proving an age discrimination case is often problematic in “one-off” situations in which a single person was hired for a position, as there will be many differentiating factors between the person hired and the person not hired and no record of successful performance for the non-selected candidate.  Such differentiating factors could include education, experience, or even that the person doing the hiring thought the other person had a better attitude.

In these types of situations, much more will be needed to prove a case other than just the fact that the older person was not hired.  For instance, comments made by the interviewer about a person “being too old” would be helpful.

In other cases, such as major retailer hiring hundreds or thousands of workers, statistics about the ages of those hired can be used to show age discrimination.  For instance, if 40% of the applicants were age 40 or older, but only 10% of those hired were age 40 or older, these statistics can be used to support a case that wrongful age discrimination occurred.

Understanding Pretext Justifications

In discrimination cases, managers will often seek to establish a pretext to justify an otherwise illegal discriminatory practice.  They may say that a person was fired because of poor performance or coming in late to work, when the real reason is age or some other type of illegal discrimination.

In a legal action, it will be important to show the true motive of management for taking a particular wrongful action.  Often through taking depositions (questioning management under oath) interviewing witnesses, and reviewing company records (such as emails), we are able to find the true (and often illegal) reasons that certain conduct occurred.

If you believe that you have been illegally discriminated because of your age or any other legally-protected reason, please call our firm to tell us about your case and learn if we can help.

We offer a free consultation so that we may learn about your case, and so that we can explain how we may be able to help and explain your options.

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