United States: First Circuit Permits Mixed-Motive Analysis For Massachusetts Age Discrimination Claim

Originally published on the Employer's Law Blog

The United States Court of Appeals for the First Circuit recently held that a plaintiff pursuing an age discrimination claim under the Massachusetts anti-discrimination statute, Chapter 151B, may proceed under a mixed-motive theory, even though the mixed-motive framework is not available under the federal Age Discrimination in Employment Act. The case is Diaz v. Jiten Hotel Management, Inc.

A mixed-motive case is one in which an employee alleges that she suffered an adverse employment action as a result of both permissible and impermissible reasons. Once a plaintiff in a mixed-motive case establishes that her membership in a protected class was a motivating factor for an adverse employment action, the burden shifts to the employer to prove that it would have made the same decision regardless of the impermissible consideration.

The plaintiff in Diaz alleged a pattern of discriminatory conduct that included, among other things, a supervisor's alleged ageist comments and failure to give her annual raises and performance evaluations. The district court issued a mixed-motive jury instruction on the Chapter 151B claim, but not on the ADEA claim, and the jury returned a verdict for the plaintiff on her state-law claim only.

On appeal, the defendant argued that the United States Supreme Court's decision in Gross v. FBL Financial, which precludes a mixed-motive approach under ADEA, requires the same result under the Massachusetts statute. The First Circuit disagreed and affirmed the district court's judgment, holding that the mixed-motive analysis survives in age discrimination cases under Massachusetts law (though not in federal age discrimination cases), based on the different language of the federal and state statutes.

The Diaz case should serve as a reminder to pay careful attention to statutory language and to be mindful of potential differences between state and federal law.

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