Articles Posted in Age Discrimination

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Weighing a decision to pursue a discrimination lawsuit can be incredibly stressful. If you’re suing your current employer, it may feel terrifying to contemplate taking the entity responsible for your livelihood to court. Even if your discrimination came at the hands of a former employer, you may fear that a discrimination lawsuit will “follow” you around, leaving you blackballed in your industry. It takes a great deal of courage to stand up to discrimination but, with the right New Jersey employment attorney, you can succeed and potentially recover a substantial sum in compensation for your damages.

An example of that occurred recently when an employee of New Jersey’s state-owned public transportation system sued her employer… and won. As reported by nj.com, the plaintiff, O.A., was 20+-year employee of NJ Transit who, in 2013, applied for the position of senior director. According to the report, the position required 8 years of transportation experience plus a degree in “bachelor’s degree in planning, engineering, public administration, economics or business.”

O.A., in addition to her two-plus decades of transportation experience, also had the relevant education experience, including two master’s degrees, according to the report. The successful candidate was a woman who had zero prior transportation experience and a bachelor’s degree in political science. The successful candidate was white (O.A. was African American,) and was also much younger than O.A.

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Layoffs… downsizing… reductions in force. All of these words and phrases are prone to bringing anxiety and uncertainty into the lives of workers. Any downsizing can be stressful and scary – and that’s especially true for older workers, as an unplanned job loss may leave them struggling to find a new position quickly that pays what the worker is really worth.

Sometimes, an employer’s reduction in force is more than just an effort to reduce overhead; it’s an attempt to purge older workers from the company’s payroll. When an employer in New Jersey uses a reduction in force to engage in illegal age discrimination, you may have options through the legal system to provide you with compensation for your losses. To find out more, be sure that you speak to an experienced New Jersey employment attorney about the specifics of your situation.

Take, for example, the recent case of C.S., an employee of a company “in the business of moving sensitive data securely between trading partners using encryption software.” In 2012, the company hired a large number of employees in order “enter the electronic medical records market.” Among those new hires was C.S., who was 60 when hired and held the position of Vice President.

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In many of today’s workplaces, it is increasingly rare for discrimination to occur out in the open. A lot of employers, aware of potential legal liability, have sought to eliminate blatant displays of discrimination. That’s not to say discrimination doesn’t still occur as often; it does. Only now, “pregnancy always makes women crazy” or “that’s a man’s job” is replaced by terminations and other discriminatory adverse actions encased in performance evaluation scores and human resources disciplinary policies.

One of the ways to succeed, even when you don’t have a “smoking gun,” is through something called “comparator evidence.” So, even without that “smoking gun” evidence (like your supervisor saying “old people just don’t have what it takes for this job”) you can still win by providing enough proof that you, as an older worker, got fired for a corporate policy violation, even though five younger co-workers violated the same rule and none of them were disciplined. To make sure that you have the proof your case needs for success, make sure you have a New Jersey employment attorney experienced in discrimination actions on your side.

A recent case from the federal courts provided some good news for workers seeking to win discrimination actions in federal court through the use of this “comparator” evidence. S.A., the plaintiff, worked in New Jersey for a chain of nutrition stores, serving as a store manager from 2001 until 2014. During his employment, S.A. received “numerous awards and accolades.” However, S.A. was fired in early 2014 and replaced by a new manager who was in his 20s. S.A. was 57.

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A civil litigation action can possibly take years to resolve. However, despite that potentially very elongated time period, the difference between success and defeat can be as narrow as just a few days–maybe even one day. Your Law Against Discrimination case needs knowledgeable New Jersey employment counsel who can provide you with the diligence and skill to help you navigate the legal system and avoid all the pitfalls that would otherwise be “show stoppers” in your pursuit of the compensation you deserve.

As an example of just how big a difference a few days can make, look at the case of J.M. J.M. was a sales manager for a major telecommunications company. In the fall of 2016, though, he sued the employer for its alleged violations of the Law Against Discrimination. As is true for quite a few employees, J.M. had signed an arbitration agreement as part of his employment with the telecommunications employer. The employer asked the trial judge to enter an order sending the case to arbitration. The trial judge sided with the employer and ordered arbitration.

When something like that happens, and you have decided that, in order best to advance your interests in your case, you definitely should avoid arbitration, then it is of the utmost importance to be sure you take action with appropriate speed. New Jersey’s court rules only give you a very limited number of days to ask the trial court to reconsider a ruling like an order compelling arbitration.

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When you’ve been harmed by workplace discrimination, it is important to act promptly. You only have a limited period of time to decide to pursue a Law Against Discrimination case and to get that complaint filed with the court. The law limits you to two years in which to file. File too late and your employer may be able to use that tardiness to get your case dismissed, which would mean that you would be forever barred from obtaining any recovery for those acts of discrimination.

Part of that prompt action is, with all due speed, consulting with, and retaining, experienced New Jersey discrimination counsel. As a layperson, you are doubtlessly very familiar with all of the rules and requirements of your profession, but it is reasonable to assume that you may not be as versed in the demands of the law. Going it alone can risk making procedural errors like filing too late, or not knowing how best to respond if your employer argues, incorrectly, that your filing came after the deadline.

As an example of a case that came down arguments about when the filing deadline passed, there’s the recently decided lawsuit filed a South Jersey woman. S. T.-B. was the executive director of a community college’s cultural and heritage commission. S. T.-B. was also a 67-year-old African-American woman with disabilities. On January 23, 2015, a vice president at the college notified the director that due to drop in enrollment and in funding, the school was making cost cutbacks, including eliminating the director’s job. The director would, however, continue to receive her regular salary until June 30, 2015.

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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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