After devoting themselves to a business, sometimes for decades, longtime employees may find themselves the odd man or woman out when management determines personnel changes are necessary. While there are any number of valid reasons for an employer to terminate or discharge an employee, in New Jersey, doing so on the basis of an employee’s age is not one of them. Both the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. and a federal law, the Age Discrimination in Employment Act, 29 U.S.C. 621, prohibit age discrimination and are applicable to employment practices in New Jersey. As the New Jersey Law Against Discrimination is both specific to New Jersey and broader than its federal counterpart, this post will focus on the New Jersey Law Against Discrimination rather than the federal statute.
The New Jersey Law Against Discrimination prohibits an employer from discriminating against an employee based on age. N.J.S.A. 10:5-4 and 10:5-12. N.J.S.A. 10:5-12(a) provides:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
For an employer, because of the . . . age, . . . of any individual, . . . to refuse to . . . employ or to . . . discharge[,] . . . unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment[.]
In some cases, unlawful discrimination may be blatant or obvious, and there is “direct evidence” of discrimination. However, as employers have become increasingly sophisticated, the more typical situation involves implicit or “circumstantial evidence” of age discrimination. In these circumstances, under the New Jersey Law Against Discrimination, an employee claiming age discrimination based on their firing, sometimes called a “discriminatory discharge”, must establish:
(1) that [he or she] is in a protected class;
(2) that [he or she] was otherwise qualified and performing the essential functions of the job;
(3) that [he or she] was terminated; and
(4) that the employer thereafter sought similarly qualified individuals for that job.
In the case of an age discrimination claim, the protected class is the relatively advanced age of the employee making the claim. In the same context, therefore, with respect to the fourth factor above, the employee must prove that he was "replaced 'by a candidate sufficiently younger to permit an inference of age discrimination.'"
However, courts in New Jersey have expressed that the fourth prong is “flexible” and can be satisfied differently in different factual scenarios, including:
Once an employee sufficiently proves the 4 prongs above, the burden of proof shifts to the employer to "articulate a legitimate, nondiscriminatory reason for the employer's action." If the employer is able to satisfy this requirement, the burden of proof then shifts back to the employee to prove that it is more likely than not that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision. A fired employee may accomplish this by showing that (1) a discriminatory reason more likely motivated the employer than the employer's proffered legitimate reason, or (2) the employee's proffered explanation is not believable.
The strength or weakness of your case depends on your unique situation. As the above suggests, advanced age, a strong and spotless employment record, replacement by a substantially younger individual, the making of discriminatory comments and other unfair, difficult to justify, behavior by the employer are all factors that would strengthen a case.
If you believe you that you have been subject to age discrimination, we invite you to contact the Law Office of Bart J. Klein to discuss the unique factual details of your situation. Only through a direct, confidential consultation can an attorney determine whether you have a valid claim or claims upon which to initiate an employment litigation suit.
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