By now, readers of this blog are probably familiar with the doctrine of at-will employment. Although at-will employees can usually be terminated for almost any reason, they cannot be terminated on account of age alone. You might be wondering how courts determine whether an employee was fired because of their age, or for some other reason.
Since evidence of direct intent is usually unavailable, this is usually proven though circumstantial evidence. Circumstantial evidence of age discrimination can come in a variety of forms, but one of the most powerful is through the use of statistics. For example, if a company faces financial difficulty, is forced to trim staff, and lays off workers aged fifty-five or over while retaining younger workers, a strong inference can be drawn that age was the motivating factor in staff retention.
This isn’t the only type of circumstantial evidence that can prove age discrimination, however. The Federal Court of Appeals that covers Massachusetts recently ruled that if an employer fires an older employee and does not provide concrete reasons for termination, then a jury is free to draw the inference that age was the determinative factor in firing.
What does this mean for Massachusetts employers? When terminating an older employee for a legitimate reason, the employer should make sure to clearly articulate the reasons for termination. It’s not enough to let the employee go and then disclose the true reason for dismissal when and if the employee files a discrimination complaint. The employer should be up front, precise, and most importantly leave no reason for the fired or laid off employee to believe that they were the victim of discrimination.
If you have any concerns regarding protection from potential age discrimination claims, please contact an employment law attorney.