High court rules against Shaw's in age discrimination suit

BY James McCarthy


Maine’s highest court ruled Tuesday against Shaw’s Supermarkets in an age-discrimination case that could have implications for other employers in the state.
The Maine Supreme Judicial Court ruled Tuesday that Maine employers trying to justify what they consider to be neutral employment policies or practices, but which happen to have a significant adverse “disparate impact” on older workers, are required by state law to meet the same strict standards that have been applied to race and sex bias cases.
The court ruling in “Scamman v. Shaw’s Supermarkets” states that one test Maine employers must apply is a requirement that they look for alternative, equally effective means to accomplish the same goals as the challenged practices, but which have a lesser adverse impact on older workers.
“It adopts a standard for pursuing an age discrimination claim that is easier to meet than the federal standard,” said Jeffrey Young, an attorney with Johnson, Webbert & Young in Augusta. Young represented Louise Scamman and four other Maine full-time employees of Shaw’s Supermarkets whose jobs were terminated in 2012 as part of a reduction in the company’s workforce.
In a phone interview with Mainebiz from the law firm’s Portland office, Young said the high court’s ruling sets the stage for a filing of a motion to pursue “class action” certification for the plaintiffs in the Scamman case and approximately 100 other Shaw’s employees who lost their jobs in 2012 and were between the ages of 50 and 60 years old. He said a class-action lawsuit would seek damages for lost wages for the affected Shaw’s employees in Maine.
A key point in the decision, he said, is that Shaw’s only discharged full-time employees in its 2012 workforce reduction. Because full-time employees were, on average, older than their part-time counterparts, the layoffs affected more older workers than younger employees.
Lori Parham, Maine state director for AARP, which had filed as a “friend of the court” in the case, applauded the court’s ruling.
“The court fully agreed with AARP, the older workers who brought the case, and the Maine Human Rights Commission which also weighed in on the older workers’ side,” she said in a written statement. “This decision preserves a key tool for older workers in Maine who are disadvantaged at work, but cannot show ‘smoking gun evidence’ of their employer’s intent to fire them based on ageism.”
Maine AARP in a release about the ruling stated that the court rejected Shaw’s legal argument that standards in federal law more favorable to employers — under the federal Age Discrimination in Employment Act — also should apply under Maine law. AARP said the court rejected Shaw’s contention that an employer only should have to show that an age-neutral practice hurting the job opportunities of older workers is “reasonable” and not that it is justified by “business necessity.”  
“Maine’s Supreme Judicial Court rejected the claim that an employer only should have to show that an age-neutral practice hurting the job opportunities of older workers claim because the ADEA language that creates a ‘reasonable factor other than age’ defense does not appear in Maine human rights law,” AARP stated.
Teresa A. Edington, spokeswoman for Shaw's, told Mainebiz that the company does not comment on pending litigation. Shaw’s, which is part of the Albertsons chain of supermarkets, has 154 stores in New England, including 20 in Maine.