In employment discrimination cases, such as age, race, ethnicity, disability, sex, etc., or discriminatory harassment, direct evidence of discrimination includes, but not limited to, for example, supervisor making discriminatory comments in emails, recorded telephone messages, text messages, social media positing’s, etc.

While direct evidence of discrimination is preferred, a plaintiff is not required to come forward with direct evidence of discrimination. All courts recognizes that employers are sophisticated enough to hide motives they know are illegal.  They do not leave a paper-trial or other direct evidence of discrimination, and there will seldom  be  eyewitness  testimony  as  to  the employer’s state of mind, no written records revealing the forbidden motive and may communicate it orally to no one.

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

New  Jersey  courts  analyze  an    LAD  claim  based  on  the  three-part  burden  shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. Under the McDonnell Douglas burden-shifting framework, if the plaintiff sets forth aprima facie case of discrimination, a presumption is created that the employer unlawfully discriminated against the plaintiff.  The plaintiff sets  forth  a  prima  facie case of  AGE  discrimination  if  she demonstrates that (1) she was in a protected class; (2) she was qualified for the position from which she was fired; and (3) she suffered an adverse employment decision; (4) she was replaced by a sufficiently younger person to create an inference of age discrimination, 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 prima facie case, the burden then shifts to the employer to articulate with admissible evidence a “legitimate non-discriminatory reason for the employer’s action. To accomplish this, the employer must clearly set forth the reasons for the plaintiff’s rejection which would support a jury finding that unlawful discrimination was not the cause of the adverse employment action.

After the employer demonstrates a legitimate non-discriminatory reason for termination, the burden then shifts back to the plaintiff to come forward with evidence demonstrating either (1)  that defendants‟ proffered  reason  for  terminating  the  plaintiff  was  unworthy  of  credence,   or  (2) discriminatory animus more likely than not motivated plaintiff’s termination.

A plaintiff may demonstrate discrimination by producing indirect evidence to demonstrate that the employers’ reasons to terminate/discipline employer’s was either a post hoc fabrication or otherwise did not actually motivate the employment action. That is, the reasons provided by the employer was a pretext.  To do so, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reasons for termination/discipline that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted reasons provided.

Alternatively, a plaintiff may come forward with sufficient evidence from which a jury could reasonably conclude that a discriminatory factor more likely than not was a motivating or determinative cause of the adverse employment decision (e.g., by showing that the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated other, similarly situated persons not of his protected class more favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons).Further, a plaintiff need not prove that discrimination was the ONLY factor, or the sole or exclusive factor in the decision to fire her, but  A factor.

Conclusion

Statistically, most plaintiffs win their discrimination cases in state courts. However, some of these cases do not even make it to a jury, and are dismissed on summary judgment. Age discrimination cases are probably more difficult than any other types of discrimination cases, as the employer can easily come forward with legitimate non-discriminatory reason for termination.  However, armed with sufficient evidence that the employer may not have acted in accordance with advanced non-discriminatory reason with other similarly situated younger employees,  or prior age- based discriminatory treatment of other employees, the chance of defeating a summary judgment motion will be much greater.

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