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  • Writer's picturePaul Peter Nicolai

Indirect Evidence Reinstates Age Discrimination Case

The Massachusetts Supreme Court has reversed a summary judgment granted an employer on a claim of age discrimination asserted by a plaintiff laid off in a reduction in force. The court said there was sufficient evidence to create a dispute of fact regarding whether he was fired because of his age. The fifty-four-year-old former employee produced evidence that officials at the company wanted to increase age diversity by hiring recent college graduates and reducing the number of older employees. Human resources (HR) executives stressed the need for age diversity and referenced making budget reductions to make room for such diversity. Statistical evidence demonstrated that the layoffs had a disparate impact on those over fifty.


WHY THIS IS IMPORTANT…the court said it was possible, and consistent with liability under the employment discrimination statute, for a mid-level manager directed to lay off employees to be found to further a discriminatory corporate policy without knowingly doing so. This is known as the cat’s paw or innocent pawn theory of liability. There was also evidence that the firing manager was given information on the ages of employees and was aware of the desire to improve age diversity. The bottom line is that there was enough evidence in the facts to show age awareness to allow the case to go forward. Since direct evidence of discrimination is rare, this kind of indirect evidence is often used to make a case.

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