Articles Posted in Age Discrimination

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Discrimination based on age is as pervasive a problem for the American workforce as it is tricky to prove. Employers’ efforts to avoid litigation have driven the development of a multitude of sneaky strategies to avoid liability under federal and state anti-discrimination laws. In fact, one of the largest technology firms in the world – IBM Corp. – recently demonstrated some of these tactics when they pushed out experienced, older employees to make way for younger, less-experienced hires. In just the last five years, IBM has eliminated 20,000 American employees aged 40 and over. This represents a whopping 60 percent of the company’s total job cuts during that time. A confidential company document obtained by the press explained explicitly that these cuts were made in order to achieve the “correct seniority mix” of its employees. To achieve this, IBM: (1) denied older workers information the company was legally required to disclose informing employees of their rights, (2) required workers to sign away their rights to have any complaints heard in a court of law, (3) used techniques in rating employee performance that punished those who had worked for IBM the longest, and (4) encouraged employees IBM had laid-off to seek another position within the company while simultaneously instructing managers not to hire them, and (5) laid-off older employees only to hire some back as independent contractors to do the same work at a greatly reduced paycheck, among other malevolent behaviors.

In New Jersey, an age discrimination claim is brought under the state’s Law Against Discrimination (NJLAD). The right to be free from discrimination is a civil right, and NJLAD covers employees and prospective employees from discrimination in the hiring and employment processes. A plaintiff bringing a claim of age discrimination will have to prove their prima facie case, consisting of four parts. First, the employee is a member of a protected class. In age discrimination, this typically means the employee is of an advanced age. However, the NJLAD also protects young workers from discrimination. Second, the employee was preforming their job at a level that met the employer’s legitimate expectations. Third, some adverse action was taken against the employee. This may include being fired, demoted, failing to promote, bad performance review or reference, among others. Finally, a plaintiff must have proof of causation. Meaning the adverse action was taken because of the employee’s age.

Causation can be established in many ways. The above example at IBM is an extreme one because it is unusual for there to be a paper trail, or even an explicit reference to age. Most age discrimination is more subtle. Employers have no doubt been warned not to call a worker “old” outright. Instead, comments made are somewhat nuanced and could be taken in more than one way. Consider “lacking in energy,” “not being up to date,” or “set in in his [or her] ways,” each of these phrases has been judged to be coded language or ‘dog whistles’ for ageism by New Jersey courts. Other ways to establish causation include: being replaced by someone substantially younger or older than oneself; suddenly receiving bad performance reviews after a long track record of good performance; the cutting of job duties or hours; attempts to force retirement such as threats to employee benefits or pension; and many more. Once the facts of the prima facie are shown to be plausible, the defendant gets the opportunity to offer a legitimate, non-discriminatory reason for the adverse employment action such as bad performance. The plaintiff may then bring proof that the reason given by the employer is actually pretext for discrimination, and not the true reason for the employer’s action.

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The federal Age Discrimination in Employment Act of 1967 (“ADEA”) and the New Jersey Law Against Discrimination (“NJLAD”) prohibit employers from discriminating against people because of their age. This includes a list of forbidden practices such as considering age when hiring and firing, compensation, assignment, transfer, promotion, use of company facilities, training, fringe benefits, pay, retirement plans, and disability leave, to name a few. While generally an employer cannot directly deny someone an opportunity to apply for a job because of their age – under the ADEA someone age 40 or over & under the NJLAD ages 18-70 (w/some exceptions) – it is currently unclear whether recruitment practices which discriminate against older applicants and deny them an equal opportunity to apply for jobs which they are well qualified are prohibited by the ADEA and the NJLAD.

The ADEA protections can be understood in two ways: Either, only “employees” are protected and anyone who is not a current employee does not have ADEA protection; or, “any individual” who is discriminated against by an employer based on their age is protected (even if they are not yet an employee). Initially, the Fourth Circuit in Villarreal v. R.J. Reynolds Tobacco Co., 839 F3d 958, 961 (11th Cir. 2016) upheld the district court’s dismissal of an ADEA suit claiming that Villareal was unfairly discriminated against by R.J. Reynolds and that his fully qualified job application was dismissed because R.J. Reynolds was looking for younger recruits only. Id. R.J. Reynolds had issued hiring guidelines “describing their ‘targeted candidate’ as someone ‘2-3 years out of college’ who ‘adjusts easily to change’” and “‘to stay away from’ applicants ‘in sales 8-10 years.’” Id. The court justified dismissing the claim because it construed the ADEA language (section 4(a)(2)) to protect only current employees from discrimination and not job applicants. Id. at 963. However, the dissent disagreed pointing out that the ADEA protects “any individual” from age discrimination and not just employees.

In February 2017, the Northern District Courtof California in Rabin v. PricewaterhouseCoopers, LLP, No. 16-cv-02276-JST, 2017 U.S. Dist. Lexis 23224 at *1 (N.D. Cal. Feb. 17, 2017) permitted an ADEA disparate-impact claim to proceed. Building on the Villareal dissent, the court in Rabin held that the ADEA protected “any individual” not just current employees, and therefore, practices which disparately impact people based on age are prohibited by the ADEA even if they are not yet employed. Id. at *17.