New Jersey Employment Lawyer Blog
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.
The manager sued in state court, alleging that his firing was the result of age discrimination in violation of the Law Against Discrimination. Using a procedural maneuver, the employer had the case transferred from state court to federal court. Despite this move, the employee was still successful at trial, with the jury awarding him $258,000.
That damages award had several parts. S.A. got $123,000 in back pay, another $60,000 in front pay and a $75,000 sum for the emotional harm he suffered.
A big part of the reason the manager won his case is that he had strong “comparator” evidence. S.A. showed that, although he had a “failing” performance evaluation score of 287 (below the minimum passing score of 300,) the company had six other store managers who received failing performance scores. None of those six, each whom was 10+ years younger than S.A., were placed on an “action plan” (a form of adverse in-house discipline) or fired within 30 days of the failing score. The store did both of those things to S.A.
Comparators must be ‘similarly situated,’ not ‘identical’
The appeals court upheld the verdict and award for the discriminated employee. When it did, it rejected arguments from the employer that the comparators that S.A. used (the six younger store managers) were not sufficiently “similarly situated.”
The appeals court made it very clear that, when an employee brings an age discrimination lawsuit in federal court in New Jersey (or Pennsylvania or Delaware,) the courts should give employees some flexibility in presenting comparators. As the appeals court succinctly put it, “Comparators must be similarly situated, not identical.”
That’s welcome news when it comes to winning a New Jersey age discrimination case based upon comparator evidence. When it comes to using this kind of proof to get the successful result you need, rely upon legal counsel that has the experience and knows how to present the most persuasive case possible. Call upon the skilled New Jersey employment attorneys at Phillips & Associates. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how our knowledgeable attorneys can assist in achieving positive results.