When an Older Worker is Replaced by an Older Worker, Age Discrimination May Still Exist

Generally, when an employer replaces an employee with someone who is 68 years of age, the last thing they should need to be concerned with is age discrimination. When the person being replaced is 74, however, the Massachusetts Court of Appeals has held employers in fact should be concerned.

In Massasoit Indus. Corp. v. Mass. Comm’n Against Discrimination, Mass. App. Ct., No. 16-P-459. (Mass. Ct. App. Mar. 23, 2017), the employer terminated William Glynn, a custodian, after he attempted to return to work following absences for pneumonia (3 days) and a heart attack (1 month). During his absences, he informed a co-worker of his situation and asked the co-worker to inform their supervisor of his need to be absent due to his medical conditions. The co-worker assured Glynn that their supervisor was aware of his illnesses. When Glynn returned to work and presented his manager with a doctor’s note indicating he could work without restrictions, the manager terminated Glynn because he had been a no-call/no-show. Prior to the absences leading to his termination, Glynn had an excellent attendance and overall work record throughout his 21-year tenure. The employer replaced Glynn with a 68-year old female approximately three weeks later.

Glynn filed a charge of discrimination with the Massachusetts Commission Against Discrimination alleging age and disability discrimination. The Commission found in Glynn’s favor, awarding him over $90,000 in lost income and emotional distress damages and another $51,000 in attorney’s fees.  The employer appealed.

The Court of Appeals applied a similar standard to Glynn’s age discrimination case as that applied in federal courts under the Age Discrimination in Employment Act. Specifically, Glynn first had to establish a prima facie case of age discrimination by showing he was in the protected age group, he performed his job at an acceptable level, and he was discharged. Then, once the employer established a legitimate, non-discriminatory reason for the discharge, Glynn had to show the employer’s reason was merely a pretext for intentional age discrimination.

The Court concluded Glynn met his prima facie case of age discrimination and established the employer’s articulated reason for the discharge – no-call/no-show – was a pretext. The Court relied on the employer’s haste in making the decision to terminate without inquiring into Glynn’s alleged failure to call in or show up for work. In fact, pulling from the disability discrimination portion of the case, the Court held the employer failed to engage in an interactive process with Glynn to determine why he had not appeared for work, or even called in for that matter. Further, the Court relied on the fact that the employer replaced him with someone 6 years younger, albeit still within the protected age group.

Accordingly, even though the employer replaced the plaintiff with another worker who was firmly within the protected age group, it was sufficient that the replacement was younger than him to establish a prima facie case of age discrimination. Employers should be aware of this decision when discharging and then replacing older workers, taking care to understand that hiring a younger worker, even one within the protected age group, may be sufficient to have the merits of the case heard by a judge or jury.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

Learn more aboutStephen B. Maule
Stephen’s practice includes all aspects of labor and employment law. He assists employers with immigration petitions to the U.S. Citizenship and Immigration Service, including H-1B, TN and permanent residency. He has also represented employers in investigations conducted by the U.S. Immigration and Customs Enforcement.