Articles Posted in Age Discrimination

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There are certain situations where one may understand, just through common knowledge, that discrimination is illegal and can be the basis of a lawsuit. If you’re African-American and incur race-based bias, you can pursue a race discrimination lawsuit. If you’re of Mexican origin, your national origin can be the grounds for your discrimination lawsuit. However, what if you’re American and you suffered employment discrimination at hands of your non-American supervisors – can you undertake a national origin discrimination lawsuit? As one recent federal case highlights, the answer is, yes, you can. To understand more about the extent of your right to be free from national origin discrimination at work, whether under federal or New Jersey law, talk to an experienced New Jersey employment attorney about your situation.

In some ways, the facts of S.M.’s case follow a somewhat familiar pattern. The injured employee was a 44-year-old man hired as a director of facilities engineering for an internationally-based pharmaceutical firm’s Philadelphia-area office in 2001. By 2014, he had been promoted several times and had a new supervisor. His supervisor was a man of a different national origin than him.

The director’s 2014 annual review was the first time S.M. received a negative performance review. Every previous year, S.M. received only grades of “meets expectations” or “exceeds expectations” and received recommended salary increases and bonuses. In June 2015, a team from the company’s home country met with S.M. and his U.S.-based team. Multiple employees on S.M.’s team complained about the culturally-based hostile environment and inappropriate questions about age. S.M. lodged a complaint with human resources. On February 29, 2016, the employer fired S.M.

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It is said sometimes that the “devil is in the details.” Sometimes, though, those devilish details can be your friend in your employment law case. In one long-time employee’s lawsuit, the details of what was – and what was not – in a proposed release agreement proved to be potentially very helpful in her age discrimination case. The alleged flaws in that agreement allowed the worker to pursue, in addition to her Age Discrimination in Employment Act claim, a second claim for violating an addition federal statute. In sum, small details can make big differences, so you should be sure you have a skilled and knowledgeable New Jersey employment attorney handling your case.

According to the U.S. Bureau of Labor Statistics, the average person has been with their current employer for between 4.5 and 5 years. K.F. was well ahead of that curve, having worked for her employer for more than 30 years when the employer let her go. According to the employer, it was eliminating K.F.’s position. At that point, it placed her on something called “surplus status,” which gave her 60 days to find a new job within the company. Two months later, the employer terminated K.F.’s employment.

The employer offered the worker severance, but only if she signed a release document that said that she forever released the employer from legal claims and waived any assertion of liability against the company. K.F., who was 60 years old, did not sign the agreement. Instead, she filed an age discrimination lawsuit. According to her complaint, the three-step process that included placing workers on surplus status and then terminating them was “infected with age bias.”

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In this blog (as well as in other spaces discussing discrimination and sexual harassment in the workplace), one issue that recurs frequently is the arbitration agreements that employers request or demand that their employees sign. The topic comes up with frequency because they are so important — these agreements can dramatically alter an employee’s rights and greatly affect the outcome of a harassment or discrimination dispute.

These arbitration agreements often disproportionately benefit the employer because the employer will (or believes it will) achieve a more favorable overall outcome resolving the case in arbitration than in court. With that mind, it may benefit an employee to seek to get the agreement thrown out, which would allow the employee to go forward in the litigation process that she/he preferred. If you need to pursue a harassment or discrimination claim, and are seeking to get an arbitration agreement thrown out, you need to have the knowledge and skill of an experienced New Jersey discrimination attorney on your side.

There can possibly be many different ways under New Jersey law to get around an arbitration agreement. M.F.’s case was an example of one. M.F. had worked for a weight-loss and nutrition business for more than a quarter-century. 20 years into her employment, in 2011, the employer submitted to the employee an arbitration agreement, which she was required to sign to maintain her employment.

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In discrimination cases, you can attempt to prove the existence of discrimination by showing that your employer’s practices and policies disproportionately harmed people of a protected class, which is called “disparate impact.” Alternatively, you can show that the employer treated you, a member of a protected class, less favorably than a comparable co-worker who was not a member of a protected class, which is “disparate treatment.” Each of these techniques requires presenting certain types of evidence to the court. To ensure that your discrimination case is as persuasive as possible, make sure that you have retained a skilled New Jersey discrimination attorney to represent you.

One example of a disparate treatment case was a lawsuit filed by an employee named Harold. Harold was a store manager at a pharmacy. At some point while on the job, Harold suspected a photo technician’s daughter of shoplifting. Harold did not report the shoplifting to his supervisors at first. Only when the daughter stole a customer’s wallet did Harold take action, contacting police. This was a failure to follow the company’s “loss prevention” policies. Allegedly due to Harold’s failure to follow those policies, the employer terminated Harold’s employment.

The manager sued his employer for discrimination. According to his claim, the failure to follow the policy was only a pretext for the real reasons he lost his job. Harold, a 61-year-old gay man, asserted that age and sexual orientation discrimination were the real motivators for his firing.

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The New Jersey Law Against Discrimination was originally enacted in 1945. In the decades since, the legislature and the courts have expanded the reach of the LAD in order to reflect various changing realities. A recent decision by the Appellate Division may perhaps open the door for yet another group of workers when it comes to the LAD:  out-of-state telecommuters. This decision highlights how the law can change and how it pays to retain a knowledgeable New Jersey age discrimination attorney if you think you’ve been a victim of age discrimination.

The employee, Susan, had worked for 12 years for a company that was based in Haddonfield. During her employment, she only visited New Jersey a few times on business from 2003-08, and none from 2009-15. During the entire 12-year period, she never lived in New Jersey and never worked here. At all times, Susan worked remotely from her home in Massachusetts. She used an employer-provided laptop to connect to the employer’s computer server, and she used an employer-provided phone to participate in company conference calls.

After the employer terminated her employment, Susan brought a lawsuit in New Jersey, alleging age discrimination in violation of the LAD. The employer asked the court to throw out the lawsuit because Susan did not meet the requirements to bring a LAD lawsuit. The trial judge agreed and threw out the case.

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There are several hurdles you have to clear on your way to a successful outcome in your New Jersey age discrimination lawsuit. One of the first of these is overcoming your employer’s motion for summary judgment, which is a legal request that the judge end your case before it gets to trial. There are a specific set of things that you have to demonstrate and assert to the court to get past this hurdle and get your trial. To give your case the best chance of getting its full day in court, be sure that you work with New Jersey employment counsel skilled in discrimination litigation.

Recently, one New Jersey employee’s age discrimination lawsuit offered an example of clearing this summary judgment hurdle. The employee, Judith, was a human resources professional who took a job in human resources management with an entertainment corporation in December 2013. Just one year later, the employer terminated her. She was 62 years old at the time that her employment ended.

Judith filed an age discrimination lawsuit under the New Jersey Law Against Discrimination. When you are bringing an age discrimination action under state law, there are several things that you have to demonstrate to the court in order to achieve a successful outcome or, potentially, even to bring your case to trial. You have to show that you were part of a protected class, that you were qualified to do your job, that you were terminated, and that you were terminated because of your membership in that protected class and replaced with someone younger.

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It is said that an “ounce of prevention is worth of a pound of cure.” Unfortunately, sometimes in life, prevention simply isn’t possible. When these circumstances arise, especially when it comes to your employment situation, the most important thing is to make sure that your response is the right one. This is one of many areas where the advice of an experienced New Jersey discrimination attorney can be key. Take for example, the case of two art institute employees, whose federal discrimination lawsuit survived their employer’s attack based upon its institution of an arbitration policy. The lawsuit survived because the men promptly and explicitly rejected the policy, according to a recent Third Circuit Court of Appeals decision that is binding in federal courts in New Jersey, Pennsylvania, and Delaware.

The employees, LaMont and Michael, were two men working as assistant directors of admissions at the Art Institute of Pittsburgh. In 2012, after each received “inexplicably harsh and unfair quarterly” performance reviews, complete with ratings of “below expectations,” each man filed a complaint with the Equal Employment Opportunity Commission. Michael alleged that the review was a pretext for age discrimination. LaMont’s assertions were similar but alleged that the basis in his case was age and race discrimination.

Less than two months after the men filed with the EEOC, the institute’s parent company instituted a company-wide alternative dispute resolution (ADR) policy. The policy established multiple tiers of dispute resolution, with the final tier being binding arbitration. The policy stated that it covered, among other things, all employee claims of discrimination, harassment, or wrongful termination.

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In any discrimination case, there can be traps and pitfalls that await you as a worker. In some cases, some of these litigation hazards can vary based upon where your lawsuit takes place, which is why an experienced New Jersey age discrimination attorney can be so vital to your case. For example, in some places, the fact that the same person who hired you also fired you soon after hiring you is considered very strong proof that no discriminatory motive existed. This is not true in the Third Circuit, which encompasses New Jersey, Pennsylvania, and Delaware. In part due to this variation in the law, a man employed in Pennsylvania was able to go forward with his age and disability discrimination case.

The plaintiff in the case, Edward, was 63 when he began working for an employer that managed non-profit retirement communities. Only 14 months after Edward started his job as the entity’s Chief Financial Officer, the employer terminated him. According to the employer, the termination resulted from Edward’s poor performance, specifically, his numerous “errors in financial reports, financial models, and cash sheets.”

The employee sued his former employer. In his action, he alleged that the employer terminated him not because of his mistakes but because of his age (64) and his disability (a heart condition). The employer, in turn, asked the trial judge to issue a summary judgment in its favor. It argued that the evidence brought forward showed that Edward had no case.

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Sometimes, the difference between a successful outcome and an unsuccessful one can be seemingly very tiny details. A knowledgeable New Jersey discrimination attorney can provide you with the assistance and representation you need when it comes to identifying those details and using them to your maximum advantage. In the case of one electronics store manager who alleged that his employer fired him due to age discrimination, he was able to pursue his case in the court system, rather than in arbitration, since he successfully persuaded the courts that he only acknowledged receipt of the employer’s new arbitration agreement and never affirmatively assented to it.

The plaintiff was the store manager at a “big box” electronics store in Woodbridge. Early in 2016, the employer sought to introduce a new policy that stated that, if an employee had a complaint that was not resolved internally, the appropriate step to launch a formal legal claim was to pursue arbitration, rather than to go to court.

The employer introduced the policy via something called an “eLearning module.” That module presented the terms of the arbitration policy and instructed the employee that, by continuing to work at the store, the employee was agreeing to be governed by the arbitration policy. The end of the module had an electronic checkbox where the employee would acknowledge having read the new policy.

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Sometimes, if you are pursuing a case alleging employment discrimination in the hiring process, the existence of an employer’s formal and objective system for selecting new hires can be a major hindrance to your case. Other times, though, it can actually help. In the recent case of two employment candidates in their 50s and 60s, the latter was true after they were able to prove that the employer passed over them to hire lower-ranking candidates who were in their 30s and 20s. The deviation from the ranking system was enough to give the men a viable claim of age discrimination, according to the Third Circuit Court of Appeals.

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