It is illegal for an employer to use age as a factor in hiring, terms and conditions of employment, in promotion, demotion, discipline, failure to accommodate, termination, etc. Under state law (New York and New Jersey), age discrimination is prohibited against any person over the age of 18. Under federal law, the age is 40 and over. State laws often are more generous than federal law in age discrimination cases.

Age discrimination is often difficult to prove. Often times there is no age-based comments (such as “you’re too old” or “are you retiring soon?”), and there is often no paper trail of proof. However, if there is no direct proof of age discrimination, the employee could provide indirect proof of discriminatory adverse employment action. Click here for an Article on this topic.

As per U.S. Equal Employment Opportunity Commission (EEOC):

Age discrimination involves treating an applicant or employee less favorably because of his or her age.

The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.

Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.

Age Discrimination & Work Situations

The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.

Age Discrimination & Harassment

It is unlawful to harass a person because of his or her age.

Harassment can include, for example, offensive or derogatory remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Age Discrimination & Employment Policies/Practices

An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age (RFOA).

No Direct Evidence Required to Prove Discrimination

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 a prima 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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