An age discrimination suit against Shaw’s supermarkets is moving ahead after the Maine Supreme Judicial Court issued a ruling considered favorable to the employees’ suit.

In 2012, the regional supermarket chain announced plans to lay off 700 employees to cut costs, after its parent company, Supervalu, had back-to-back quarterly losses. In Maine, the chain eliminated 70 jobs, all of them full-time positions, which the employees’ suit claims had the effect of disproportionately harming older workers.

Three laid-off workers filed a complaint with the Maine Human Rights Commission alleging age discrimination, and the commission found in favor of those workers, using a “business necessity” standard.

That standard argues that the business could have used other methods to cut costs, said Jeffrey Neil Young, the lawyer handling the suit for the employees.

He said that Shaw’s could have, for instance, asked all employees to take a pay cut or have had some full-timers cut back to part-time hours. In other states where Shaw’s cut costs, he said, the company used a mix of methods, including layoffs of both full- and part-timers, indicating that Shaw’s had other options to save money.

The impact of only laying off full-timers, Young said, meant that the move had a disproportionate effect on a protected class of workers – older ones who are protected by state laws against age discrimination.

In its response to the lawsuit, Shaw’s said the court should use a “reasonable factor other than age” standard, meaning that it could show that the steps it took reflected a responsible business reason that was not intended to be discriminatory on the basis of age.

The suit is being heard in U.S. District Court, which asked the state supreme court to provide an interpretation of Maine’s Human Rights Act and which standard should be used to help judge Shaw’s actions.

Both sides and the federal court agreed that if the state supreme court said a “reasonable factor other than age” standard were applied – an approach used in some federal anti-discrimination laws – Shaw’s would win the case. But if the Maine Supreme Judicial Court said a “business necessity” standard should be used, the suit could move ahead in federal court.

This week, Maine’s supreme court said the Human Rights Commission was right to use the “business necessity” standard. It said Maine law does not contain the “reasonable factors other than age” language that exists in some federal laws.

The decision means that the case will now return to federal court, Young said, to determine whether the layoffs were forced by a business necessity and whether the company could have found a less discriminatory means to find the cost savings.

Shaw’s spokeswoman Teresa Edington said the company does not comment on pending litigation.

Young said he will seek to have the suit certified as a class action on behalf of all of the 70 employees who were laid off in Maine.

Edward D. Murphy can be contacted at 791-6465 or at:

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