Age Discrimination

Age Discrimination in terms and Conditions of Employment

Age discrimination is when an employer treats you less favorably because of your age. It is illegal under the New Jersey Law Against Discrimination (LAD) as well as the federal Age Discrimination in Employment Act (ADEA) for an employer to use age as a factor in terms and conditions of employment, including hiring, training, promotion, discipline, job assignment, layoff, termination, etc.

While the ADEA applies to those age 40 and above, the LAD applies to anyone over the age of 18. The New Jersey LAD provides broader protection that the federal ADEA.

Hostile Work Environment Based of Age

In addition to outright discrimination in the terms and conditions of employment, it is also illegal for a supervisor, or a client or customer of the employer or any co-workers to harass you because of your age. For example, pervasive derogatory remarks about your age may constitute illegal harassment if it interferes with your work environment. Comments such as “you’re too old” or “are you retiring soon?” could constitute age discrimination if the comments are frequent enough to create an uncomfortable and hostile work environment. However, the comments must be unwelcomed and not comments you interpret as a “joke” or “banter.”

The U.S. Equal Employment Opportunity Commission (EEOC) provides additional guidance on age discrimination under the ADEA.

Proving Age Discrimination

There are two (2) ways to prove age discrimination: Direct Evidence or indirect evidence of Discrimination.

Direct Evidence of Age Discrimination

Direct evidence of age discrimination could be in the form of comments, such as you are too old” or “we are looking for someone younger for the position’ or similar comments. These comments could be recordings or written as in text messages, postings on the internet or company intranet or in emails. In addition, it may be found in internal documents or company’s internal strategic plans in which the company explicitly seeks a younger workforce or younger face.

Indirect Evidence of Age Discrimination

Indirect evidence of discrimination is the most common method of proving discrimination in today’s world for the following reasons: Courts recognize that today’s employers and their managers/supervisors are sophisticated enough to hide motives (discrimination) they know are illegal. Employers often do not leave a paper-trial or other direct evidence of discrimination. There will seldom be eyewitnesses, recordings, emails, texts, etc., revealing the employer’s state of mind.

Thus, in the absence of direct evidence of discrimination, courts permit a plaintiff to present her case to a jury if she produces circumstantial evidence of discrimination sufficient to demonstrate that her termination was more likely than not motivated by discrimination.

New Jersey courts analyze an LAD discrimination claim (including age discrimination) based on the three-part burden shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green.

The McDonnell-Douglas burden-shifting framework is not a test or framework for the plaintiff to prove at trial. It is a standard to be applied at the summary judgment stage by the judge to avoid a dismissal. At the end of discovery in an employment discrimination case, the defendants almost always file a motion for summary judgment asking the court to dismiss the case arguing that plaintiff “lack proof” of discrimination. To overcome this dismissal motion and get your case to a jury, the plaintiff must satisfy each element of the McDonnell-Douglas burden-shifting framework. Once the plaintiff does so, the McDonnell-Douglas burden-shifting framework is no longer applicable, and the case goes to the jury for trial.

Under the McDonnell-Douglas burden-shifting framework, if the plaintiff sets forth a prima facie case of discrimination, a presumption is created that the employer unlawfully discriminated against the plaintiff. In a case of age discrimination, the plaintiff sets forth a prima facie case of age discrimination if he demonstrates that (1) he was in a protected class (any age over 18 in New Jersey); (2) he was qualified for the position from which she was fired (this is not difficult to show); (3) he suffered an adverse employment decision (suspension, demotion or termination); and (4) he was replaced by a someone sufficiently younger than him, or the termination took place under circumstances that give rise to an inference of unlawful discrimination.

After an employee has established a prima facie case, a presumption is created that the employer unlawfully discriminated against the employee.

After the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a non-discriminatory reason for termination (violation of company policy, for example, which is one of the most common reasons for an employee’s termination).

After the employer points to their reasons for termination, the burden then shifts back to the plaintiff to come forward with evidence which could show pretext for age discrimination (or any other type of discrimination).

“Unworthy of Credence”

There are a variety of ways an employee may show pretext. The employee may produce evidence which tend to show that the employer’s reasons for termination is not believable (“unworthy of credence”). For instance, if the employer claims that it fired the employee for violation of a specific policy, the employee may (1) point to evidence that could show that the employee did not violate the policy; (2) the employer’s policy (which they relied on for termination) was unclear; (3) the employer gave different reasons at different times (“shifting explanations”); (4) the employer’s reasons for termination was vague or contradictory; (5) the employer deviated from its own policy by failing to follow its own disciplinary procedures; (6) the employer failed to conduct any internal investigations especially in a case of a long term employee, or conduct a sham investigation in which the decision is made first and investigation is conducted to back up the decision; or (6) the reasons for termination is weak, incoherent, or contradictory.

Each of the above constitute evidence that the violation of the company policy was not the true reason. The courts assume that if an employer was really concerned about violation of its policy, then it would make sure that the policy is clear and conduct a thorough investigation.

The employee does not have to produce evidence to satisfy each of the above reasons to defeat a motion for summary judgment, just one or two may suffice.

Comparative Evidence of Discrimination

In addition to the above, the employee may also demonstrate that discrimination was more likely a factor for termination by producing evidence that (1) the employer previously discriminated against him, (2) discriminated against other persons within plaintiff’s protected class (older employees); or (3) treated similarly situated individuals outside of his protected class (younger employees) more favorably than the plaintiff.

Again, the employee does not have to provide or produce evidence in satisfaction of all of the above. If he produces any evidence under the “unworthy of credence” category, he does not need any comparative evidence to defeat a motion for summary judgment. However, at trial, the more evidence the better.

If you believe you have been discriminated or retaliated against, give us a call at (201) 222-0123, or send us an email at info@chatarpaullawfirm.com or fill out the form below.