Age Discrimination

It’s illegal for an employer to discriminate against any current or potential employee on the basis of that employee’s age.

Federal Law Forbids Employment Discrimination Based on Age

The Age Discrimination in Employment Act of 1967 (ADEA) made age a protected characteristic for employment decisions. This means that an employer covered by this federal statute cannot discriminate against someone over the age of 40 because of their age in hiring, promotions, wages, termination, or layoffs. It prohibits statements of age preference and limitations in job notices or advertisements, denial of benefits to older employees, and most mandatory retirement requirements. It is also illegal under the ADEA to retaliate against an employee for complaining about age discrimination.

If an employer takes an “adverse employment action” against a worker because of his or her age or in retaliation for participating in a complaint, it may be grounds for a lawsuit. According to the EEOC, “an action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” These include

• Employment actions such as termination, refusal to hire, and denial of promotion,
• Other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and
• Any other action, such as an assault or unfounded civil or criminal charges, that are likely to deter reasonable people from pursuing their rights.

State Law Provides Added Protection in the Workplace

The New Jersey Law Against Discrimination (NJLAD) also protects workers from age-based discrimination in hiring, firing, compensation, terms and conditions of employment, and retirement. A notable difference between the ADEA and the NJLAD is the scope of workers to whom it applies. The NJLAD prohibits age discrimination against individuals who are at least 18 years old, not just those over 40, but it specifically allows employers to refuse to hire or promote individuals who are under the age of 18 or over the age of 70. Employers who are subject to the ADEA, however, must follow the federal law’s more restrictive prohibitions on discrimination against older employees.

Like the ADEA, the NJLAD also prohibits an employer from taking an adverse employment action, such as failing to hire, demoting, disciplining, terminating, reducing pay, or laying off an employee, on account of age. Similarly, the NJLAD bars retaliation against employees who make discrimination or harassment complaints as well as the use of age-based criteria in the hiring or recruitment process (unless age is a “bona fide occupational qualification” for the job).

Protection from Workplace Harassment Based on Age

It is unlawful under both the ADEA and NJLAD for anyone in the workplace to harass an employee because of his or her age. This includes harassment by supervisors, coworkers, and clients. Harassment is deemed 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 action (like termination or demotion). If the harassing conduct is intentional, extreme, and outrageous, it may constitute intentional infliction of emotional distress.

Proving Age Discrimination Is a Complicated Issue

One way to demonstrate that you were the victim of age discrimination is by showing that you were replaced by a significantly younger employee. If you can expose a pattern of multiple employees being terminated and replaced by younger employees, you have an even better chance of proving discriminatory intent or impact.

For decades since the ADEA became law, the accepted standard of proof for an age discrimination case required the plaintiff to show that discrimination was at least one (of possibly many) reasons for the employer’s adverse actions; if a plaintiff proved this, then the burden shifted to the employer to prove it would have made the same decisions regardless of the plaintiff’s age. A few years ago, the U.S. Supreme Court ruled that the actual language of the ADEA does not explicitly support such “mixed motive” cases against employers for discrimination against older workers. As a result, a plaintiff’s burden of proof has been unclear and not uniformly interpreted by courts across the country. Some courts have required that plaintiffs prove that age was the sole factor, or at least the deciding factor, in an adverse employment action – both of which are much more difficult standards of proof to meet.

What to Do If You Are the Victim of Age Discrimination

Victims of age discrimination in New Jersey can file employment-related claims with two primary agencies. At the federal level, the Equal Employment Opportunity Commission (EEOC) handles discrimination claims, while the New Jersey Division of Civil Rights (DCR) typically handles discrimination claims at the state level. In order to bring a claim before the EEOC, the complaint must be related to unlawful discrimination or retaliation covered by federal laws. Claims covered only by state law, on the other hand, must be brought before the DCR. Not all employers are covered by both the federal and state age discrimination laws.

If you believe you’ve been the victim of age discrimination, you should talk to an attorney experienced in federal and New Jersey anti-discrimination laws. An experienced attorney can help you determine whether you may have a claim, and if so, help you decide which venue would be best for you to pursue an action.

To schedule an appointment at the Basking Ridge, Oradell, or Newark, New Jersey, law offices of Mark | Lavigne, LLC, contact us today. Our experienced employment team can help you determine whether you may have a claim for age discrimination or other employment law violations.