Approximately 8 to 10 percent of claims at the Massachusetts Commission Against Discrimination (MCAD) involve age discrimination. A recent decision by the Massachusetts Appeals Court on a case originally filed at the MCAD demonstrates some of the nuances that employers need to pay attention to when the potential for an age-discrimination claim exists.

The decision involved an incumbent 63-year-old employee applying for the newly created position of Director of Emerging Technology at a state agency. After the state failed to interview him and ultimately hired a much younger employee for the position, he brought a claim of age discrimination to MCAD.

The case was transferred to the courts where the state agency successfully sought summary judgment (arguing that there was no factual dispute to litigate) thereby dismissing the employee’s claim. On appeal however, the employee provided sufficient evidence to demonstrate that the reasons the employer offered for not considering him were pretextual and that there was a factual dispute as to the reason why the employer refused to interview the employee. Based on that, the Appeals Court denied the request for summary judgment and sent the case back for trial.

Background

The position of Director of Emerging Technology was created in 2015. The position was posted within the state system with requirements of five years of management experience and seven years of experience in energy and emerging technology. The 63-year-old candidate met both criteria. The ultimately successful candidate had some relevant experience in both categories but did not meet the years of service criteria specified in the job posting for either category.

As part of the hiring process the agency commissioner also bypassed the normal state application review process by having all the resumes sent directly to her instead of relying on the normal initial screening process.

Ultimately, the commissioner met only with three candidates, two other incumbent employees and one significantly younger outside applicant. The employer never granted the 63-year-old an interview, instead offering the job to the younger outside applicant.

Keep your story straight

The employer’s case was significantly weakened by the ‘shifting nature’ of the description of the criteria the employer claims it used to evaluate candidates at various stages of the hiring process. While the employer contends that its criteria remained consistent, and that any inconsistencies reflected the commissioner’s focus at various times on specific areas within those criteria, the court didn’t buy it.

The appeals court stated that “On our review of the summary judgment record, we agree with the employee that there are sufficient, substantive differences between the description of the job requirements in the public job posting, the agency’s position statement to the Massachusetts Commission Against Discrimination, its response to interrogatories during discovery, and the commissioner’s deposition testimony to support a reasonable inference of pretext.”

The employee also contends that the employer’s failure to follow established Massachusetts state agency hiring procedures alone may give rise to an inference of discrimination. Although the agency does not deny its failure to adhere to established practices contained in the state’s ‘model hiring guidelines’ promulgated by the executive branch’s human resources division, it asserts that they were not mandatory.

The employer deviated from guidelines that were provided to all managers in executive branch agencies, and from the agency’s own hiring practices, by declining to:

• develop and apply screening criteria to select candidates to be interviewed;
• involve the agency’s diversity officer at various stages of the hiring process;
• establish standard questions in advance of interviews and distribute them to an interview panel;
• create objective written criteria for evaluating candidates based on their interviews; and
• retain documentation of scoring candidates during the interview process.

The court determined that the evidence adequately supported an inference of discriminatory intent.

Concluding that the plaintiff has demonstrated a genuine issue of material fact, the court sent the case back for trial.

Final thoughts

Cases like this illustrate how crucial it is for employers to be consistent in all their decision-making throughout the hiring process from conceptualizing the need for a new position to the selection of candidates. The failure to do so invites litigation such as this and will likely result in the employer losing at trial or being forced to settle.

AIM members with questions about this or any other human resources matter may call the AIM HR Helpline at 1-800-470-6277.