Maine high court asked to set appropriate legal standard in disparate impact age bias claims
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Friday, January 29, 2016

Maine high court asked to set appropriate legal standard in disparate impact age bias claims

By Ronald Miller, J.D. Finding no clear controlling precedents, a federal district court in Maine certified to the Maine Judicial Supreme Court the question of what legal standard applies to disparate impact age discrimination claims filed by former employees of a supermarket chain regarding whether the employer’s facially neutral reduction in force (RIF) policy violated the Maine Human Rights Act (MHRA). The employees were all over 50 years old and employed by the employer on a full-time basis. They asserted that the employer acted unlawfully because only full-time employees were laid off, and they were disproportionately older than part-time employees who were not laid off (Scamman v. Shaw’s Supermarkets, Inc., January 26, 2016, Levy, J.). Reduction in force. The employer is a grocery retailer operating in the New England states. On November 2, 2012, it implemented a RIF throughout its New England locations due to poor economic conditions. In selecting employees for termination, the employer implemented a policy of excluding part-time employees from consideration. Based on this policy, the company terminated 66 full-time employees in Maine. The five employees in this case were employed in locations in Maine on a full-time basis when they were terminated as part of the RIF. All plaintiffs were in their 50s. On March 14, 2013, the employees filed complaints of systemic age discrimination with the MHRA and EEOC. On December 19, 2014, an investigator for the Maine Human Rights Commission found that there were reasonable grounds to conclude that the employer violated the MHRA by discriminating on the basis of age under a disparate impact theory, but not under a disparate treatment theory. On January 26, 2015, the commission adopted the investigator’s analysis. Thereafter, the employees filed an action in state court, which was removed to federal court. The employees alleged that the employer’s facially neutral reduction in force policy violated MHRA because it laid off only full-time employees who were disproportionately older than part-time employees not laid off. They sought certification of a class action. Legal standard. The parties disagreed as to the legal standard that applied to the employees’ disparate impact age discrimination claim. The employees contended that the applicable standard is the “business necessity” standard, which applies to cases brought under Title VII. They argued that the operative language of the MHRA, 5 M.R.S.A. Sec. 4572(a)(A), is similar to the corresponding language of Title VII, 42 U.S.C.A. Sec. 2000e-2(a)(1). On the other hand, the employer contended that the applicable standard is the “reasonable factor other than age” standard, which applies in cases brought under the ADEA, 29 U.S.C.A. Sec.623(f)(1). The employer argued that this is the applicable standard for an age discrimination claim under the MHRA because Maine generally follows federal law when construing provisions of the MHRA that correspond to federal law. Certification of question. Here, the district court determined that the question of law certified by its order satisfied the criteria of Maine Rules of Appellate Procedure. Thus, the court certified the following question to the Maine Judicial Supreme Court: Is a claim for disparate impact age discrimination under the Maine Human Rights Act evaluated under the “reasonable factor other than age” standard; the “business necessity” standard; or some other standard? The court concluded that the answer to the question may be determinative of the cause and there were no clear controlling precedents from Maine’s high court.

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