|Robert S. Mantell practices with Rodgers, Powers & Schwartz in Boston, concentrating in plaintiff-side employment law. From January 1995 to the present, he has served on a number of MBA committees assisting the Massachusetts Commission Against Discrimination in drafting regulations and guidelines on subjects including procedure, handicap discrimination and sexual harassment.
This article will show why disparate impact analysis should apply to age discrimination claims under General Laws chapter 151B. Neither the Massachusetts appellate courts nor the Massachusetts Commission Against Discrimination have addressed the issue.
Age/impact claims have been accepted in Massachusetts superior courts without analysis.1 However, in Mullin v. Raytheon Co.,2 the First Circuit declared that the Supreme Judicial Court would refuse to recognize age/impact claims under Chapter 151B. Disparate impact theory is a well-recognized framework for proving discrimination generally, and it should apply to age discrimination claims as well.
Proving disparate impact
Chapter 151B is the Massachusetts statute that prohibits employment discrimination based on age, race, gender, religion, handicap and other categories. Discrimination is often proved by showing that discriminatory animus motivated a particular employment decision. However, discrimination also may be demonstrated with proof of disparate impact.
Disparate impact theory applies when an apparently neutral employment standard disproportionately and unjustifiably impacts those in a protected class.3 In other words, where the employment standards tend to exclude members of a protected class excessively, and those standards are unrelated to the employer's legitimate business interests, use of the criteria may be considered discrimination. Under the disparate impact framework, additional proof of discriminatory motive is not required.4
An excellent early example of the impact analysis is contained in the United States Supreme Court decision of Griggs v. Duke Power Co.,5 which considered a Title VII race discrimination claim. The Court held that where an employer uses scores on an intelligence test as hiring criteria, but there is no showing that a good test score is significantly related to successful job performance, use of the test may be deemed discriminatory to the extent that it disproportionately and unjustifiably screens out members of a protected class, such as African-Americans.6
Disparate impact analysis has been a fixture in employment law for decades. It is well established that a court may order affirmative action where disparate impact analysis reveals intentional or unintentional discrimination.7 An examination of Chapter 151B and its legislative history reveals that age claims are properly subject to this useful analysis.
Disparate impact adopted in Section 4 claims
It is clear that Chapter 151B embraces disparate impact claims. The Massachusetts courts and the MCAD have specifically indicated that the disparate impact theory applies to various Chapter 151B cases, including handicap, race and gender claims.8
The Supreme Judicial Court has, in the School Committee of Braintree case, stated,
[Disparate impact] cases involve employment practices that are facially neutral in their treatment of different groups, but that in fact fall more harshly on one group than another.
In a footnote at the end of this sentence, the court further states:
We recognize that G.L. c. 151B, ß 4, like the Federal act, 42 U.S.C. 2000e-2(a)(1) (1976) (Title VII of the Civil Rights Act of 1964) [Title VII] 'proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.' Griggs v. Duke Powers Co., 401 U.S. 424, 431 (1971).9
Thus, the disparate impact theory was acknowledged as part of the arsenal of tools for those claiming a violation of Section 4 of Chapter 151B. The prohibition against age discrimination is included within Section 4.10 Logically, then, impact analysis, as embraced by the School Committee of Braintree case, applies to age claims.
Age provisions similar to race, gender and handicap provisions
The prohibition against age discrimination is written similarly to the language of other claims that are subject to disparate impact analysis. In an expression of linguistic symmetry, Chapter 151B prohibits discrimination "because of" age, "because of" handicap and "because of" race and sex.11 The repetition of the same standard for each claim indicates that they are all subject to the same standards of proof.12 If disparate impact applies to one type of claim, it should apply to all.
The legislative history of Chapter 151B demonstrates that the disparate impact theory applies to age claims, just like other discrimination claims. As originally enacted in 1946, Section 4(1) of Chapter 151B stated:
It shall be an unlawful employment practice:
(1 For an employer, by himself or his agent, because of the race, color, religious creed, national origin, or ancestry of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms conditions or privileges of employment, unless based upon a bona fide occupational qualification.13
At this early date, Chapter 151B contained no proscription against age discrimination.14
Age discrimination was prohibited in 1950. The legislature did so by inserting the word "age" into Section 4(1), after the phrase "national origin."15 As an integral part of Section 4(1), age claims must have been intended to receive the same treatment as other claims; the same language applied to each. The prohibition against age discrimination remained a part of Section 4(1) for the next 34 years.
In 1984, the legislature removed the age claim from Section 4(1) of Chapter 151B and generated two new provisions to address age claims: sections 4(1B) and 4(1C). The purposes of this amendment were  to prevent public employers from asserting a "bona fide occupational qualification" defense (BFOQ), and  to permit general or special laws that adversely affect older public employees.
The first of the new provisions, Section 4(1B), pertains exclusively to private employers, and states that it is unlawful:
For an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.16
This provision tracks the substantive language of Section 4(1), word for word. Compare General Laws chapter 151B, section 4(1) and 4(1B). The only difference is that the provision applies exclusively to age claims against private employers.17 The second of the new provisions, Section 4(1C), pertains to public employers. It states that it is unlawful
For the commonwealth or any of its political subdivisions, by itself or its agent, because of the age of any individual, to refuse to hire or employ or to bar or discharge from employment such individual in compensation or in terms, conditions or privileges of employment unless pursuant to any other general or special law.18
This provision likewise tracks the substantive language of Section 4(1), but with an exception. Reference to the BFOQ defense has been deleted, and in its place, it states that a public employer may comply with other laws that discriminate on the basis of age.19 In other words, the legislature remains free to promulgate age limits for certain types of governmental jobs.20 Other than deletion of the BFOQ defense and recognition of laws that discriminate, with regard to public employers, neither of the new provisions effects any change to the underlying prohibition against discrimination. The language and organization used is identical in all other material respects to section 4(1). Given that the legislature cast the age claim in the same linguistic mold as Section 4(1), it is clear that the standards of proof are the same among the claims.
Age standard remained consistent, despite development of disparate impact law
The 1984 amendment is doubly critical because it came after many developments in disparate impact jurisprudence.21 The fact that the age standard remained consistent with race and gender standards, after courts began to embrace impact claims for race and gender, signifies a legislative intent to recognize age/impact claims.
In 1971, the United States Supreme Court recognized disparate impact theory in the Title VII race discrimination case of Griggs v. Duke Power Co.22 Title VII, like Chapter 151B, prohibits discrimination "because of" race and other protected classifications. In the late 1970s, the SJC was adopting disparate impact analysis in other Chapter 151B cases.23 Nonetheless, in 1984, the legislature retained language prohibiting discrimination "because of" age, mirroring the language prohibiting race and gender discrimination in Chapter 151B and Title VII.24 Thus, the legislature made no move to distinguish age claims from the ongoing and long-established acceptance of the impact theory.25 In this way, the legislature signaled its acceptance of age/impact claims.
Chapter 151B interpreted liberally
Recognition of the age/impact claim is consistent with the obligation to interpret Chapter 151B in a "liberal" fashion.26 According to the legislature's instruction, Chapter 151B "shall be construed liberally for the accomplishment of its purposes."27 This provision requires a court to read Chapter 151B expansively, to embrace all claims that reasonably fall within its scope.28
One of the purposes of Chapter 151B non-discrimination provisions is to remove "artificial, arbitrary and unnecessary barriers to full participation in the workplace."29 This expression of purpose in the Harvard case is notable, because it appears to sum up the essence of disparate impact analysis.
The expression of purpose in the Harvard case is important for a second reason. It is a paraphrase of the Supreme Court's decision in Griggs v. Duke Power Co.,30 which adopted disparate impact analysis for Title VII. In accepting impact claims, the Supreme Court held that Title VII requires "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification."31 Given the parallel purposes underlying Chapter 151B and Title VII, and their similar wording, theories of relief recognized under Title VII should also apply to Chapter 151B.
Age/impact claims would represent an important development because they would prohibit unnecessary tests of qualification that act as a barriers to full opportunities for older workers. For example, under this analysis, an employer's preference to hire teachers with less than five years experience may be a violation because it might be proven unjustified, and it adversely impacts older, otherwise qualified teachers.32 An employer's policy to exclude applicants who have received retirement benefits may be subject to challenge. Furthermore, a workplace rule prohibiting the hiring of individuals with gray hair, or other age related characteristics, may also be addressed via disparate impact. Thus, age/impact claims would result in a very reasonable, yet important, extension of Massachusetts civil rights law.
Deroche v. Town of Wakefield
The Massachusetts Commission Against Discrimination has not yet decided whether to recognize age/impact claims. However, the MCAD came close, in DeRoche v. Town of Wakefield.33 In that case, Wakefield's Retirement Board failed to inform an employee, DeRoche, that the mandatory retirement age had been raised from 65 to 70. When DeRoche turned 65, he submitted his application for retirement without any prompting from the respondent. The MCAD presumed the existence of age discriminatory intent where respondent failed to inform DeRoche about the change in the law.34
In the DeRoche case, the MCAD has utilized a disparate impact analysis in all but name. In other words, where the respondent engaged in an age neutral manner (silence about a change in the retirement law), and this conduct was unjustified and impacted on older workers, discrimination was presumed.35 Thus, it appears that the MCAD would support the use of age/impact claims.
The Mullin case was wrongly decided
As noted above, the First Circuit has held that age/impact claims are not recognized under General Laws chapter 151B.36 As will be shown, the Mullin case was wrongly decided, and was based on an erroneous analysis.
The First Circuit's reasoning may be summarized as follows:  there is no disparate impact age discrimination claim under the Age Discrimination in Employment Act (ADEA)37 and Massachusetts law tends to follow federal law; and  the Chapter 151B age discrimination prohibition is contained in a different provision than for handicap, race and gender discrimination, so different burdens of proof should apply to age claims.38 For a number of reasons, the First Circuit's holding should not be followed.
The ADEA is not written the same as Chapter 151B
Even if the First Circuit is right that the ADEA forecloses age/impact claims, that does not mean that its restrictive interpretation of Chapter 151B follows.39 The ADEA is worded differently than Chapter 151B in pertinent parts.
The ADEA permits an employer to defend an age claim with proof that the employer acted based on "reasonable factors other than age" (RFOA defense).40 The RFOA defense may be read to permit employers to discriminate based on factors that correlate to advanced age, as long as age itself is not targeted.41 Disparate impact claims are driven by correlations between neutral factors and protected classifications. Therefore, some courts have concluded that the RFOA provision precludes age/impact claims under the ADEA.42 However, Chapter 151B does not contain a parallel RFOA provision. Therefore, Chapter 151B has been written differently from the ADEA in a very material aspect.
ADEA not linked to provisions embracing impact claims
There is a second important distinction between ADEA claims and Chapter 151B age claims. The ADEA is separate and distinct from any other provision that permits impact claims. On the other hand, Chapter 151B age provisions are bound closely to, and worded similarly to, other claims that are open to impact analysis.
The ADEA is not located in the same chapter as other claims that embrace disparate impact. In 1967, Congress enacted the ADEA as part of the Fair Labor Standards Act (FLSA).43 Disparate impact is not an accepted method of proof in an ordinary FLSA claim. Importantly, the ADEA was not included within Title VII.44
Moreover, in 1991 Title VII was amended to explicitly recognize disparate impact claims. Simultaneously, Congress amended the ADEA in myriad respects, but did not insert language addressing disparate impact.45 Thus, Congress treated the ADEA differently from other laws that embrace disparate impact.
This is not the case for Chapter 151B age discrimination claims. Age discrimination has been bound up with other disparate impact-friendly claims. Age claims are part of the same statutory framework as race, gender and handicap claims.46 For 34 years, age discrimination provisions were actually contained in the same provision as race and gender claims: Section 4(1).47 In 1984, when separate provisions were generated for age claims, the operative language for age claims remained identical to that of Section 4(1). Even after the separation took place, the provisions were placed physically adjacent to Section 4(1), in 4(1B) and 4(1C).
The age discrimination provisions were placed in between other provisions that permit disparate impact - Section 4(1) (race and gender) and Section 4(16) (handicap). It would be ridiculous to assume that the legislature, in drafting a list of claims using identical language, intended to create a motley assortment of claims with different requirements. The ADEA is segregated from other discrimination laws, inviting speculation that different standards govern. However, Chapter 151B age provisions are closely associated with and worded similarly to other claims utilizing impact theory, and each claim should be treated similarly.
Chapter 151B is not controlled by federal interpretation
Despite the numerous distinctions between Chapter 151B age claims and the ADEA, the First Circuit presumed that the Supreme Judicial Court would likely look to interpretations of the ADEA in construing Chapter 151B.48 However, this is not a safe assumption. With regard to civil rights laws, Massachusetts frequently refuses to follow federal court interpretations.49
Chapter 151B is not written the same as federal statutes. The different wording often results in different interpretations.50 Moreover, Chapter 151B requires that it be interpreted in a "liberal" fashion, while the ADEA does not.51 This difference justifies Chapter 151B's broader coverage.52 Thus, the First Circuit was incorrect in assuming that Chapter 151B would follow the ADEA prohibition on age impact claims.
An employer may argue that the disparate impact model is inappropriate for age discrimination cases, because almost everyone in the workforce will reach the protected age group of 40 and older. This argument seeks to diminish the importance of age discrimination by implying that since everyone falls into the category, age animus is not as virulent as other types of discrimination.
However, the argument does not bear up to close scrutiny. Everyone has a gender, and everyone has a race and a national origin. Many people will eventually become handicapped. However, the impact theory applies to handicap, race and gender claims. Application of the disparate impact model does not depend on the narrowness of the protected class. The wide scope of the other protected classes does not preclude impact claims in their contexts. Thus, there is no basis for arguing that the breadth of the class of older workers should preclude use of the disparate impact model.
An employer may also claim that age/impact claims should not be recognized because many business-related considerations strongly correlate to the age of the workers.53 However, this argument collapses upon itself. To the extent that an employer institutes a true, business-related justification for its conduct, it should prevail under the disparate impact analysis even if there is an age correlation. Therefore, the fact that sometimes age correlates with business-related considerations does not demonstrate that the impact theory is always inappropriate. The theory would be productively used where the employer uses unjustifiable criteria that impact on older workers.
Disparate impact analysis permits a finding of discrimination without additional proof of intent. Thus, it is sometimes said that disparate impact can demonstrate "unintentional" discrimination. An employer may argue that the Chapter 151B prohibition against age discrimination addresses only intentional discrimination, and therefore, disparate impact analysis will not demonstrate a violation.54 However, Chapter 151B provides remedies where intentional discrimination is not shown, and even where the bias is "unconscious."55 Disparate impact is a profound method of determining whether an employer is stereotyping in a manner that adversely affects older workers. Disparate impact analysis is consistent with the general tenor of the statute and does not conflict with any requirement to prove intentional conduct.
For these reasons, the Supreme Judicial Court and the Massachusetts Commission Against Discrimination should recognize age/impact claims under Chapter 151B. This interpretation of the Chapter 151B is logically correct, legislatively mandated and fair.
1. Valliere v. Rexam Graphics, Inc., 4 Mass. L. Rptr. No. 27, 594, 596 (Feb. 26, 1996) (applying disparate impact analysis to General Laws chapter 151B age claim); see also MacAlpine v. Digital Equip. Corp., 1998 Mass. Super. LEXIS 519 (refusing to dismiss age/impact claim based on timeliness of filing).[back]
2. 164 F.3d 696 (1st Cir. 1999), reh'g denied, 171 F.3d 710 (1st Cir. 1999), cert. denied, 120 S. Ct. 44.[back]
3. See Valliere, 4 Mass. L. Rptr. No. 27 at 596 (applying disparate impact analysis to Chapter 151B age claim). [back]
4. See Smith Coll. v. MCAD, 376 Mass. 221, 227 (1978); School Comm. of Braintree v. MCAD, 377 Mass. 424, 429 (1979). The initial prima facie burden in a disparate impact case is on the plaintiff to show that she has been harmed by an ostensibly neutral employment practice that nevertheless has a significant adverse impact on the protected class. Once such a claim is asserted, the burden then is on the employer to demonstrate that the challenged employment practice has a manifest relationship to the employment in question. Finally, the burden is back on the plaintiff to demonstrate either that the employer's professed rationale for the practice is pretextual, or that some other practice, without a similarly discriminatory side effect, would have served the employer's legitimate interests equally well. Connecticut v. Teal, 457 U.S. 440, 446-47 (1982); EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 602 (1st Cir. 1995). If the plaintiff prevails, then discrimination has been shown.[back]
5. 91 S. Ct. 849 (1971).[back]
6. Id. The disparate impact theory is related to the "class-linked characteristic" theory of proving discrimination. Consider, for example, the law prohibiting discrimination based on pregnancy. Chapter 151B does not contain a specific prohibition on pregnancy discrimination. However, because pregnancy is linked so inextricably with the female gender, it is a sex-linked characteristic. Consequently, discrimination based on pregnancy constitutes discrimination based on gender, without any additional requirement to prove gender animus. White v. Univ. of Mass., 410 Mass. 553, 558 (1991); School Comm. of Brockton v. MCAD, 377 Mass. 392 Mass. 398-9 (1979); Mass. Elec. Co. v. MCAD, 375 Mass. 160, 167-8 (1978); Butner v. Dep't of State Police, 2001 Mass. Super. LEXIS 320. Disparate impact theory is analogous to the class-linked characteristic theory - the criteria is shown to be strongly correlated to the protected class and is shown to be an unnecessary basis for business decisions. Discrimination based on unjustified criteria is tantamount to discrimination on the basis of the protected class status, without need for additional proof of intent.[back]
7. Boston Chapter, NAACP v. Beecher, 371 F. Supp. 507 (D. Mass. 1974), aff'd 504 F.2d 1017 (1st Cir. 1974).[back]
8. See Cox v. New England Tel. & Tel. Co., 414 Mass. 374, 385 (1993) (handicap discrimination); see Lynn Teachers Union v. MCAD, 406 Mass. 515, 526 (1990) (gender discrimination); City of Boston v. MCAD, 47 Mass. App. 816, 821 (1999) (race discrimination); School Comm. of Braintree v. MCAD, 377 Mass. 424, 429 (1979) (gender discrimination); Smith Coll. v. MCAD, 376 Mass. 221, 227 (1978). The MCAD likewise recognizes disparate impact. Harris v. Tatum, 2002 Mass. Comm. Disc. LEXIS 44 (chapter 151B race claim); Freeman v. World Travelogue Co., 6 MDLR 1783, 1799-1801 (1984) (chapter 151B gender claim).[back]
9. School Comm. of Braintree v. MCAD, 377 Mass. 424, 429 & n.10 (1979). [back]
10. Mass. Gen. Laws ch. 151B, ß 4(1B) & (1C). [back]
11. Mass. Gen. Laws ch. 151B, ßß 4(1), 4(1B), 4(1C) & 4(16).[back]
12. Beeler v. Downey, 387 Mass. 609, 617 (1982) (meaning given to words in one part of a statute should be accorded to identical words in another part of the statute).[back]
13. St. 1946 c. 368.[back]
14. Massachusetts had a law on the books prohibiting age discrimination as early as 1937. Mass. Gen. Laws ch. 149, ß 24A; 1937 Acts, c. 367, ß 2.[back]
15. St. 1950, c. 698, ß 6.[back]
16. Mass. Gen. Laws ch. 151B, ß 4(1B); St. 1984, c. 266, ß 6.[back]
17. See Johansen v. NCR Comten, Inc., 30 Mass. App. 294, 295 n.2 (1991) (reorganization of Chapter 151B did not substantively change age discrimination law).[back]
18. Mass. Gen. Laws ch. 151B, ß 4(1C); St. 1984, c. 266, ß 6 (emphasis added). [back]
19. Mass. Gen. Laws c. 151B, ß 4(1C).[back]
20. See, e.g., Mass. Gen. Laws ch. 32, ß 26(3)(a) (requiring certain state police officers to retire at age 55).[back]
21. St. 1984, c. 266.[back]
22. 91 S. Ct. 849 (1971).[back]
23. Comm. of Braintree v. MCAD, 377 Mass. 424, 428 (1979) (gender discrimination); Smith Coll. v. MCAD, 376 Mass. 221, 227 (1978).[back]
24. Mass. Gen. Laws ch. 151B, ßß 4(1B) & (1C).[back]
25. St. 1984, c. 266.[back]
26. Mass. Gen. Laws ch. 151B, ß 9.[back]
27. Mass. Gen. Laws ch. 151B, ß 9.[back]
28. Robert S. Mantell, The Liberal Interpretation of Chapter 151B, 4 MBA Section Review 4 (Summer 2002), at 25.[back]
29. Harvard Law School Coalition for Civil Rights v. President & Fellows of Harvard Coll., 413 Mass. 66, 68 (1992).[back]
30. 91 S. Ct. 849, 853 (1971).[back]
31. Griggs, 91 S. Ct. at 853.[back]
32. See Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 451 U.S. 945 (1981) (Rehnquist, J., dissenting).[back]
33. 2002 Mass. Comm. Discrim. LEXIS 60 (2002). [back]
34. Id. at 36-37. [back]
36. Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999), reh'g denied, 171 F.3d 710 (1st Cir. 1999); Flebotte v. Dow Jones & Co., 51 F. Supp. 2d 36, 44 (D. Mass. 1999). [back]
37. 29 U.S.C. ß 621, et seq. prohibits age discrimination in employment as a matter of federal law.[back]
38. Mullin, 164 F.3d at 704-06 & n. 9.[back]
39. While the First Circuit has rejected ADEA age/impact claims, it is uncertain whether that position is correct. Circuit courts conflict on this point. Compare Dist. Council 37 v. New York City Dep't of Parks & Recreation, 113 F.3d 347 (2d Cir. 1997); Smith v. Des Moines, 99 F.3d 1466 (8th Cir. 1996); see also EEOC Notice, Number 915.002, Sept. 18, 1996 (disparate impact theory is applicable to ADEA age discrimination claims). The Supreme Court has not ruled definitively, although some judges have questioned the viability of age/impact claims under the ADEA. Hazen Paper Co. v. Biggins, 507 U.S. 604, 609-10, 618 (1993).[back]
40. 29 U.S.C. ß 623(f)(1). [back]
41. Id. [back]
42. See Mullin, 164 F.3d at 700-02; 171 F.3d at 710.[back]
43. 29 U.S.C. ß 621, et seq. [back]
44. See Lorillard v. Pons, 98 S. Ct. 866, 870 (1978).[back]
45. Mullin, 164 F.3d at 703.[back]
46. Mass. Gen. Laws ch. 151B, ßß 4(1), 4(1B), 4(1C). The legislature eschewed the option of putting the age provisions in a different chapter, such as Chapter 149. See Mass. Gen. Laws ch. 149, ß 24A (prohibiting age discrimination in employment and providing criminal penalties).[back]
47. St. 1950, c. 698, ß 6.[back]
48. Mullin, 164 F.3d at 706[back]
49. See Cuddyer v. The Stop & Shop Supermarket Co., 434 Mass. 521, 536, 537 (2001); see also Dahill v. Police Dep't of Boston, 434 Mass. 233 (2001).[back]
50. Bain v. City of Springfield, 424 Mass. 758, 765 n.4 (1997) (Chapter 151B covers a broader range of conduct than federal law because it is worded differently).[back]
51. Mass. Gen. Laws ch. 151B, ß 9.[back]
52. Cuddyer, 434 Mass. at 536. [back]
53. See Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1707 (1993) (making employment decisions based on pension status may be distinguishable from making decisions based on the age of employees).[back]
54. See Hazen Paper Co., 113 S. Ct. at 1706. [back]
55. Lipchitz v. Raytheon Co., 434 Mass. 493, 503 (2001) (discrimination is unlawful even though "an employer will not necessarily be aware of his or her bias" and judge incorrectly instructed jury in gender discrimination claim that a "conscious motive" to discriminate was required); see also School Comm., 377 Mass. at 429 n.10 (Chapter 151B proscribes practices that are fair in form but discriminatory in operation).[back]