State Agencies Not Exempt from Age Bias Claims, Says Mass. Court

By | August 11, 2011

The Massachusetts Appeals Court has ruled state agencies aren’t exempt from age discrimination lawsuits, even when the discrimination is the result of a policy that doesn’t explicitly target older workers.

The case involved a Department of Revenue tax examiner who was laid off when he was 53.

The worker, Richard Porio, argued that he was discriminated against because of his age. Porio said the department kept other tax examiners who were younger.

The Department of Revenue denied discriminating against older workers, but also argued that when lawmakers amended the state’s anti-discrimination laws in 1984 they effectively protected state agencies from age discrimination lawsuits.

The three-justice Appeals Court sided with Porio, ruling the 1984 changes did not give state agencies immunity from age discrimination lawsuits.

Porio’s lawyer called the ruling a victory for workers at a time when public and private employers have been cutting work forces.

“In this day and age of cutbacks, if the commonwealth or any municipality is going to lay off people they better make sure its age neutral and race neutral and sex neutral,” said attorney Frank Teague.

A spokesman for the Department of Revenue declined to comment on the lawsuit.

A spokesman for Attorney General Martha Coakley’s office, which defended the department, said the office is reviewing the ruling before deciding whether to appeal to the Massachusetts Supreme Judicial Court, the state’s highest court.

The case hinged in part on the question of whether state agencies can be found guilty of age discrimination under what is called “disparate impact.”

Discrimination lawsuits can typically be brought citing two separate legal theories: disparate treatment and disparate impact.

Disparate treatment refers to more explicit discrimination, where an employer specifically makes hiring and firing decisions based on race, age, sex or any other protected status.

Disparate impact refers instead to employment practices that appear neutral in their treatment of different groups, but still fall more heavily on one group than another.

Porio’s lawsuit used the second “disparate impact” theory to argue discrimination in his case.

Porio argued, in effect, that DOR, under pressure to meet its budgetary needs, had adopted a policy that improperly targeted older workers in deciding which positions to eliminate.

DOR denied that its employment decisions were motivated by age discrimination and instead maintained its actions were “based upon legitimate, non-discriminatory reasons.”

DOR also argued that the agency was exempt from the lawsuit, pointing to the 1984 amendments.

The Appeals Court said that while the wording of the changes wasn’t the clearest, it was hard to believe lawmakers would use ambiguous wording of an amendment to make such an important change in law.

The court found that it was equally possible that the fuzzy language was the result of sloppy bill writing or what the court called a “scrivener’s error,” what amounts to a typographical error.

“Had the Legislature intended to restore the Commonwealth’s sovereign immunity for those age discrimination cases that were brought on a disparate impact theory, one would have expected it to employ a less obscure approach to doing so,” the court wrote.

Teague said the case now heads back to the lower court unless the state appeals it to the Supreme Judicial Court.

He said the case could head to trial unless DOR decides to pursue a settlement.

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