Proving Age Discrimination: Retirement Inquiries as Circumstantial Evidence

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.

Once an employee establishes a prima facie case, the burden shifts to the employer to provide a legitimate, non-discriminatory reason to justify the adverse employment action. From there, the burden shifts back to the employee to demonstrate that the employer’s reason is a pretext for age discrimination. This can be accomplished in several different ways. As one example, discriminatory bias can be inferred where an employer offers a retirement package or develops a recruitment plan for the purpose of “youth-anizing” its workforce.

In Acevedo-Parrilla v. Novartis Ex-Lax, for instance, the employer investigated how long employees perceived to be or at near retirement age planned to stay with the company and implemented a recruitment plan to replace workers in this demographic. As part of this plan, employees were asked to retire early. The employer also demoted at least one employee who refused to do so. Based on these and other facts, the First Circuit ruled that an inference of age discrimination could be made and required the case to be tried before a jury. The Massachusetts Appeals Court in Davidson v. City of Pittsfield did the same where the plaintiff put forth evidence that several supervisors inquired on numerous occasions about when she planned to retire.

Likewise, in Olivera v. Nestlé P.R., the First Circuit opined that a jury could infer pretext for age discrimination where, among other facts, the employer offered employees over 58 years old a retirement package. Finally, in Calhoun v. Acme Cleveland, the First Circuit upheld an age discrimination verdict in favor of the plaintiff in light of evidence that the employer repeatedly asked when the employee planned to retire, demoted the employee and promoted a younger colleague, and threatened the employee with 12 to 14 hour work days if he did not resign.

Contrary to what has become popular belief, age discrimination claims are no more or less difficult to prove than other forms of employment discrimination. Moreover, circumstantial evidence using the McDonnell Douglas burden-shifting paradigm is certainly an effective means to proving an age discrimination case before a jury. And as the cases above make clear, retirement inquiries are one such form of indirect evidence that can be probative of an employer’s intent to discriminate on the basis of age.

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