Age discrimination continues to garner public attention as older workers challenge traditional notions of what is deemed a “normal” retirement age. Like other forms of employment discrimination claims, it is rare to find direct or “smoking gun” evidence of age discrimination. Rather, age bias claims are typically proven through circumstantial evidence. Specifically, under the McDonnell Douglas framework, employees who suffer age discrimination must first establish what is known as a prima facie case by showing that they: (1) are at least 40 years old, (2) possess the qualifications to do the job, (3) experienced some type of of adverse employment action (e.g., termination, demotion, failure to promote), and (4) were replaced by someone who is “substantially younger.”
In Knight v. Avon Products, the Massachusetts Supreme Judicial Court defined “substantially younger” as an age disparity of at least five years. In addition, the Supreme Court in O’Connor v. Consolidated Coin Caterers made clear that satisfying the fourth element does not require the replacement to be under 40 years old. As such, a 65 year old employee would still meet his or her burden under the fourth prong if the replacement is 60 years old or younger.