Older doctors in New Jersey who are required to undergo medical screening examinations as a condition of maintaining hospital staff privileges likely have the right to sue for age discrimination under New Jersey’s Law Against Discrimination, N.J.S.A., 10:5-1, et seq. (“LAD”). Supporting this conclusion is the belief held by the federal Equal Employment Opportunity Commission (“EEOC”) that age-based medical screenings of doctors violates federal discrimination laws.

In February 2020, the EEOC filed a lawsuit against Yale New Haven Hospital Inc. (“Yale”), charging the health system with violating the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. and the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101, et seq. Specifically, the EEOC alleges Yale’s “Late Career Practitioner Policy” discriminates against medical practitioners on the basis of age. The hospital’s policy requires medical practitioners who are seventy (70) years or older to take ophthalmological and neuropsychological evaluations to test cognitive and eye function.  Yale claims the hospital policy has the salutary aim of screening to identify the potentially compromised abilities of older physicians. The EEOC lawsuit filed in 2020 in the U.S. District Court for the District of Connecticut (EEOC v. Yale New Haven Hospital, Civil Action No. 3:20-cv-00187) seeks relief against Yale including, inter. alia., a permanent injunction preventing Yale from carrying out the policy or other policies that “discriminate on the basis of age,” as well as to obtain back wages and liquidated damages on behalf of those doctors negatively affected by the policy. This lawsuit remains unresolved and pending as of this writing.

Should such age-based screening of doctors be found violative of the ADA and ADEA, it is predictable that our state courts will conclude these screenings equally violate New Jersey’s LAD.   This is because New Jersey courts generally interpret the LAD by reliance upon federal court decisions construing the analogous federal antidiscrimination statutes. Chisolm v. Manimon, 97 F. Supp. 615, 621 (D. N.J. 2000). For example, in LAD employment discrimination cases, federal precedents under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17, provide a key source of interpretive authority. Lehmann v. Toys `R’ Us, Inc., 132 N.J. 587, 600 (1993). In LAD cases specifically involving age discrimination in employment, New Jersey courts adopt the analysis of federal Title VII cases and federal cases under the ADEA. Giammario v. Trenton Bd. of Educ., 203 N.J. Super. 356, 361 (App. Div. 1985). Further, in LAD disability discrimination cases, the New Jersey courts look to the standards established in federal ADA cases. Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir. 1996).

The New Jersey Legislature has declared “that practices of discrimination against any of its inhabitants…are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3. Thus, it is the clear public policy of the State of New Jersey to abolish discrimination in the workplace.  Fuchilla v. Layman, 109 N.J. 319, 334 (1988), cert. denied University of Medicine & Dentistry v. Fuchilla, 488 U.S. 826 (1988). As so eloquently stated by our state Supreme Court, the overarching goal of the LAD “is nothing less than the eradication of the cancer of discrimination.” Fuchilla, supra., 109 N.J. at 334. Indeed, “[f]reedom from discrimination is one of the fundamental principles of our society.” Lehman v. Toys R’ Us, 132 N.J. 587, 600 (1993). As remedial legislation, the LAD is to be construed with a “high degree of liberality”.  Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 495 (1982).  Given the high degree of liberality state courts are required to apply to the LAD, it is likely they would find age-based screenings of doctors violate the LAD.  This conclusion will likely hold true even if the federal court in Connecticut holds differently when applying the ADEA and ADA.

It is safe to assume that a physician subjected to a policy targeting medical practitioners based solely on their age would be able to pursue a valid discrimination lawsuit under New Jersey’s LAD. While the New Jersey LAD and the federal ADEA and ADA statutes function similar in their application, the LAD is far more encompassing than the federal statutes.  Unlike the ADEA, which protects employees forty (40) years or older, the New Jersey LAD prohibits age discrimination against all employees aged eighteen (18) years and older. Id. at 201, 215. Under the ADA, the use of Fitness for Duty medical examinations must be consistent with the functions of the job, a business necessity, and a factual basis for the examination must be direct or reliable. In re Williams, 443 N.J. Super. 532, 543-45 (App. Div. 2016). Under the LAD, an employer cannot administer such tests unless: (1) the test or criterion is job related to the position; and (2) alternative means of testing do not exist that would have the effect of screening out fewer people with disabilities. N.J.A.C., 13:13-2.3(a).

Employers sometimes attempt to justify discriminating against one or more protected classes by claiming there exists bona fide occupational qualifications (BFOQs) which serve to disqualify those class members from attaining or maintaining employment. To assert a valid BFOQ defense for discriminating based on age, a hospital would have the burden of establishing that reaching a certain advanced age disqualifies a doctor from being able to practice medicine competently and safely. See generally N.J.A.C., 13:11-1.4.  However, stereotyped assumptions about a doctor suffering mechanical or cognitive decline based on his or her reaching a certain age are impermissible to support a BFOQ defense. N.J.A.C., 13:11-1.4(d). The law is clear:  individuals must be considered for employment on the basis of their individual capacities and not on the basis of any characteristics generally attributable to their group. N.J.A.C., 13:11-1.4(b).

Even in cases where an older doctor may be found to have an actual handicap, a hospital would still carry a heavy burden of showing the handicap justified denying the doctor staff privileges. To do so, a hospital would have to demonstrate its decision was based on an objective standard and supported by “factual or scientifically validated evidence”. Jansen v. Food Circus Supermarkets, 110 N.J. 363, 378 (1987) (finding that to invoke a safety defense as a justification for otherwise unlawful discrimination, the employer must be found to have reasonably concluded the employee’s handicap posed a materially enhanced risk of serious injury to the employee and/or to those who likely would come into contact with the employee). Such a high evidentiary hurdle will in most cases be insurmountable.

If you are subject to an adverse employment action because of your age, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to protecting the rights of employees.

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