You may have a case for age discrimination if 1) you are over forty, 2) have been fired or demoted, failed to be promoted, or treated differently because of age, 3) have performed your job at an acceptable level. You need, particularly for firings or demotions, show proof that you were replaced by a similarly or less qualified person under facts showing age bias. Age discrimination often involves circumstances where a less qualified younger* person is hired or promoted, instead of a more qualified and same age or older applicant.
*(typically but not always 5 years or more)
Were there other reasons for the negative job action that are valid and not pretext for discrimination? In a recent MCAD case, the Commission found that the reasons for cutting back a 71-year-old employee’s hours given by the employer and replacing him with a 20 year old were not pretext. The employer treated another older worker well and there were valid reasons given the complainant’s attitude. The employee ultimately has to show that “but for” the age discrimination, the negative job action would not have been taken. Often the term that the Courts use for the “fourth element” of proof is the word animus or bad attitude of age bias. If you cannot show some evidence from which a bad attitude may be inferred, you may not have a claim.
You should be realistic about whether performance problems or the other person’s having better qualifications gave the employer good cause for the negative employment action or passing one over for promotion. In another case involving a fifty something Hispanic faculty member at the U. of Mass. who was not promoted, there was evidence of ageist comments. Nonetheless, the administrator had valid reasons to promote a younger black faculty member who was better qualified.
Damages awarded in Court or by the Massachusetts Commission against Discrimination (MCAD) include money awards for back pay, sometimes front pay, and often emotional distress damages. Interest at 12% from date of filing can be an important factor when cases take a couple years or longer to resolve. They include reasonable attorney’s fees in most cases. The Courts but not MCAD may award punitive damages – with double to triple damages – if age discrimination was committed with knowledge, or reason to know, that such act or practice violated the law. The federal Age Discrimination in Employment Act (ADEA) is also available, but the remedies for employees are not as significant as under Mass. Law.