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How much of an age difference between my replacement and me is necessary to claim age discrimination?

Employees over 40 years old are protected from age discrimination in the workplace. The employer cannot use the employee’s age as a controlling factor in a personnel decision.

Since age is a relative term, the employee cannot just rely on an age disparity to prove discrimination, unless there is direct evidence of bias. E.g., frequent remarks or “jokes” about an employee’s age. Otherwise, the Massachusetts Supreme Judicial Court says that an age disparity of less than 5 years, all by itself, is too small to infer age bias.

Discrimination, the SJC said, is inferred when the employer replaces a qualified employee who is over 40 years old with an employee who is substantially younger. The greater the difference in age, the stronger the possible inference of age discrimination.

Although this seems like a “bright line test,” the SJC said that an employee can still prove age discrimination if he or she has other evidence, beyond the mere disparity in ages. An employee can rely on direct or indirect evidence to show that age was a determinative factor in the personnel decision. Examples of discriminatory intent, motive, or state of mind will help overcome the hurdle of a modest age disparity between the departed employee and the younger, replacement employee.

When legitimate reasons for a personnel decision have been eliminated as justification for the employer’s actions, it is more likely than not that the employer based its decision on an impermissible consideration, like age discrimination.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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