Articles Posted in Age Discrimination

Many New Jersey employers include provisions for arbitration of disputes in written contracts with new employees. In order for an arbitration agreement to be legally enforceable, it must, among other criteria, contain enough information to demonstrate a “meeting of the minds” between the parties. The New Jersey Appellate Division recently ruled that an arbitration agreement, signed decades after the plaintiff began working for the defendant, was not enforceable because there was no “meeting of the minds” in evidence. Flanzman V. Jenny Craig, Inc., No. A-2580-17T1, slip op. (N.J. App., Nov. 13, 2018).

The plaintiff in Flanzman is alleging age discrimination under the New Jersey Law Against Discrimination (NJLAD). This statute prohibits employers from discriminating against employees on the basis of numerous factors, including age. Whereas the federal statute addressing age discrimination expressly states that it only applies to individuals who are forty years of age or older, 29 U.S.C. § 631(a), the NJLAD does not set a minimum age. It does, however, state that an employer does not automatically violate the law if they “refus[e] to accept for employment or to promote any person over 70 years of age.” N.J. Rev. Stat. § 10:5-12(a). This exception only covers two specific discriminatory acts: refusal to hire and refusal to promote. It does not mention other acts, such as termination or unequal pay.

In order for a contract to be enforceable, the party seeking enforcement must demonstrate that the other party knowingly assented to the agreement. Courts are particularly strict about this requirement when the contractual term at issue involves a waiver of legal rights. An arbitration agreement waives the right to seek redress in court. If the agreement provides for binding arbitration, the parties may have no recourse in the court system at all. New Jersey courts therefore require evidence that an employee “clearly and unambiguously agree[d] to waive his or her statutory rights.” Flanzman, slip op. at 8, quoting Leodori v. Cigna Corp., 175 N.J. 293, 302 (2003).
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A group of former male employees of a high-end Manhattan department store have filed a lawsuit alleging race and age discrimination against the store and its corporate parent. They claim that they were subjected to a hostile work environment because of their age or race, or both in some cases, and that the defendant unlawfully terminated their employment. Although the lawsuit is pending in a New York court, federal and New Jersey antidiscrimination laws provide a helpful comparison of varying levels of protection against age discrimination. New Jersey’s antidiscrimination statute provides broader protections than its federal counterpart.

Federal and state law provide a similar range of protections against race discrimination. Title VII of the Civil Rights Act of 1964, a federal statute, prohibits employment discrimination on the basis of race and color, as well as religion, national origin, and sex. 42 U.S.C. § 2000e-2(a). The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of numerous factors, including race, color, national origin, and ancestry. N.J. Rev. Stat. § 10:5-12(a).

New Jersey law and federal law differ in the extent to which they address age discrimination. The Age Discrimination in Employment Act (ADEA), a federal statute, only applies to individuals who are forty years old or older. 29 U.S.C. § 631(a). It prohibits discrimination by employers based on age, using language similar to that found in Title VII. Id. at § 623(a). The statute allows exceptions, such as in cases of people who work in “a bona fide executive or a high policymaking position,” are at least sixty-five years old, and meet other criteria related to employment benefits. Id. at § 631(c).
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Under federal and New Jersey state law, age discrimination is an unlawful employment practice. If you have questions related to this area of law, contact a New Jersey employment discrimination attorney. The federal Age Discrimination in Employment Act (ADEA) of 1967 prohibits discrimination based on age involving employees who are at least forty years old. Workers cannot waive their rights under the ADEA unless employers to make specific written disclosures under the Older Workers Benefit Protection Act (OWBPA) of 1989. A lawsuit currently pending in New Jersey alleges that the defendant presented the plaintiff with a proposed severance agreement that violated the OWBPA. The defendant argued that the severance agreement was moot because the plaintiff never signed it. The court rejected this argument. It found that the severance agreement could serve as evidence of a broader pattern of age discrimination in violation of the ADEA. Fowler v. AT&T, Inc., et al, No. 3:18-cv-00667, mem. op. (D.N.J., Oct. 31, 2018).

The ADEA prohibits age discrimination against workers who are forty years of age or older. 29 U.S.C. §§ 623(a), 631(a). The statute allows exceptions, such as “compulsory retirement” of an employee who is at least sixty-five years old, has worked for at least two years “in a bona fide executive or a high policymaking position,” and meets certain criteria related to retirement benefits. Id. at § 631(c).

The primary purpose of the OWBPA is to prevent discrimination against older workers with regard to fringe benefits like health insurance and retirement plans. For example, the statute requires employers to incur the same costs for benefits provide to workers age forty or older as are provided to younger workers, and prohibits refusal to hire an older worker solely in order to avoid the requirement to provide benefits. Id. at § 623(f)(2). It also states that employees cannot waive their rights under the ADEA unless the waiver is “knowing and voluntary,” based on specific disclosures. Id. at § 626(f).
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A federal jury recently found in favor of a former employee claiming national origin and age discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and state law. Middlebrooks v. Teva Pharmaceuticals USA, Inc., et al, No. 2:17-cv-00412, 2nd am. complaint (E.D. Pa., Apr. 25, 2017). The case is notable in part because the plaintiff alleged that the defendants, an Israeli pharmaceutical company and its American subsidiary, discriminated against him because of his “American origin.” Id. at 1. If you have questions of this nature, contact a New Jersey employment discrimination attorney.

In early 2018, the court allowed the plaintiff’s claims against the Israeli parent company to proceed under a theory of joint-employer liability. The case went to trial against both defendants in November 2018. The jury awarded the plaintiff over $6 million in damages.

Title VII prohibits discrimination on the basis of national origin, among other factors, and retaliation for reporting alleged unlawful acts. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). The ADEA prohibits discrimination on the basis of age against individuals who are at least forty years old. 29 U.S.C. §§ 623(a)(1), 631(a). Unlawful discrimination may include harassment on the basis of a protected category, particularly when it creates a hostile work environment that prevents an individual from performing their job duties effectively.

Several bills currently pending in the New Jersey Legislature could make substantial changes to state laws dealing with employees’ rights in the workplace. Two bills address various forms of employment discrimination, and another two would raise the state’s minimum wage. Each bill was introduced in early 2016 and referred to a committee. Three bills are still awaiting committee hearings, while one of the minimum wage bills passed both chambers and is now waiting for the governor’s signature or veto. Whether any of these bills pass or not, they bring needed attention to issues that employees face throughout New Jersey.

Minimum Wage

The minimum wage in New Jersey is currently $8.38 per hour. N.J. Rev. Stat. § 34:11-56a4, N.J.A.C. § 12:56-3.1. A bill that would gradually raise the state’s minimum wage to $15 per hour has passed both houses of the Legislature. A15 would raise the minimum wage to $10.10 per hour on January 1, 2017. On the first day of each subsequent year, the minimum wage would increase by the greater of either $1.25 per hour or $1.00 plus that year’s increase in the consumer price index.

The goal of the bill is for the minimum wage to reach or exceed $15 per hour by 2021. The bill was introduced in the New Jersey Assembly on February 8, 2016. The Assembly passed it on May 26, followed by the Senate on June 23. The governor has reportedly threatened to veto the bill but has not yet done so. He also has not signed it into law.

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Age discrimination in the technology industry has received considerable media coverage in recent years, as several high-profile technology executives have made quite blatant statements of bias against older workers. Employment discrimination takes many forms, however, and frequently involves subtle actions, or patterns of action, rather than anything overtly and unmistakably discriminatory. The use of certain terms or phrases in job postings may serve as evidence of bias against certain protected groups. Claims against tech companies have alleged age discrimination based on employment advertisements stating preferences like “new grads.” Over the past year, the term “digital native” has emerged as the latest in a long line of possible indicators of age bias by technology companies and other employers around the country.

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., prohibits discrimination on the basis of age against workers who are at least 40 years old. Exceptions include a “bona fide occupational qualification” involving age, or “reasonable factors other than age.” 29 U.S.C. § 623(f)(1), 29 C.F.R. §§ 1625.6, 1625.7. The statute does not prevent an employer from favoring someone age 40 or older over someone younger than 40, based solely on age. It is only intended to protect older workers from discriminatory practices favoring younger workers. The number of age discrimination complaints received annually by the Equal Opportunity Commission (EEOC) has increased from 15,785 in 1997 to 20,144 in 2015

Statements indicating bias against older workers seem to be common in the tech industry, if the news media are any indication. In 2007, Facebook CEO Mark Zuckerberg, who was 22 years old at the time, stood on stage at a conference and declared that “young people are just smarter.” His company settled an age discrimination claim with state regulators six years later, after the company advertised a job opening with the caveat that it preferred applicants from the “Class of 2007 or 2008.” It is not entirely clear why so many in the tech industry seem to favor younger workers. Youth is by no means an indicator of superior aptitude with computer technology, but that is apparently the perception of many. This is where the term “digital native” comes into play.

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Employment discrimination on the basis of age, especially against workers who are into or past what is often considered “middle age,” and who are looking for a job, does not always receive as much media attention as other forms of discrimination. The federal and state laws regarding this type of discrimination are also not as well known or understood. It is becoming more and more of a problem, however, as the American population ages. A few recent cases illustrate how an age discrimination claim in New Jersey might work.

Research regarding the issues faced by older workers indicates that people in their 50s or older tend to have a much harder time finding a job than younger workers. The discrimination is rarely overt, instead taking the form of certain reasons given not to hire someone, such as “You’re overqualified.” This can make discrimination difficult to prove, but the New Jersey Law Against Discrimination (NJLAD) allows claims for age discrimination in employment. N.J. Rev. Stat. § 10:5-12(a). The federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., also allows civil claims, but it only applies to workers above a certain age in certain situations.

The NJLAD provides relatively strong protection for workers asserting age discrimination claims. New Jersey courts have held that the statute preempts common law claims, such as breach of contract or breach of the covenant of good faith and fair dealing, if they are primarily based on alleged age discrimination. See Broad v. Home Depot USA, 16 F.Supp.3d 413, 419 (D.N.J. 2014). The ADEA protects workers who are 40 years of age or older against discrimination that is not based on a “reasonable factor other than age.” See 29 C.F.R. § 1625.7, 77 Fed. Reg. 19080 (Mar. 30, 2012). It also prohibits workplace harassment based on age. The statute does not, however, prohibit an employer from favoring an older employee over a younger one.
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In 2007, Facebook founder and CEO Mark Zuckerberg spoke to a group of aspiring entrepreneurs at a startup workshop at Stanford University about “the importance of being young and technical.” Zuckerberg, who was 22 years old at the time, went on to say that “young people are just smarter.” He cited attributes like “simpler lives,” which would allow younger employees to devote more time to their jobs. Age discrimination has long been a serious issue in the technology industry. The question of whether maintaining a young, energetic workforce–at the cost of losing older, more experienced employees–is ultimately to a company’s benefit is something that tech industry analysts can discuss. Refusing to hire someone solely on the basis of his or her age is often against both state and federal law. This problem is not limited to the tech industry but occurs in many industries all over the country. As the tech industry expands into places like New Jersey, however, the way in which some tech companies proudly tout their “youth” bears scrutiny.

Under the federal Age Discrimination in Employment Act (ADEA), employers may not discriminate against employees in hiring, firing, and other terms and conditions of employment based on the person’s age. 29 U.S.C. § 623(a)(1). This includes limiting job openings to a particular age group, either expressly or by using terms like “new or recent graduates preferred.” The ADEA, however, only applies to workers who are at least 40 years old. 29 U.S.C. § 631. It therefore might not prohibit age discrimination based on a determination that a person is too young. New Jersey’s Law Against Discrimination (LAD) also prohibits discrimination on the basis of age. N.J. Rev. Stat. § 10:5-12(a).

The tech industry, in California’s Silicon Valley and elsewhere, appears to value youth as much as, if not more than, the movie industry in Hollywood or the fashion industry in New York City. This has manifested itself in a variety of ways, from a general lack of “graybeards” to awkward work environments for the older tech workers who do manage to find jobs. It also includes multiple instances of overt age discrimination, such as the sort of job listings mentioned earlier that discourage older job seekers, either by directly stating an age limit or using phrases like “Class of 2007 or 2008 preferred.” A job advertisement using that phrase led to a settlement, which did not include any monetary penalties, between Facebook and California employment regulators in 2013.
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A former sales executive obtained a substantial verdict in May 2014 in a lawsuit against Microsoft, which accused the software company and a consultant of employment discrimination, sexual harassment, retaliation, and defamation. Mercieca v. Rummel, et al, No. D-1-GN-11-001030, third am. pet. (Tex. Dist. Ct., Travis Co., Apr. 12, 2013). He alleged a conspiracy to make false allegations of sexual harassment against him, which resulted in a hostile work environment and discriminatory treatment. The company then retaliated against him, eventually constructively terminating him, after he formally complained about the hostile work environment.

The plaintiff worked for Microsoft for 17 years in offices around the world. At the time of the events described in the lawsuit, he was a Senior Sales Executive in the company’s Austin, Texas office. He claimed that he had an excellent reputation within the company and had received multiple awards for sales performance, customer service, and service to the company.

In the fall of 2007, Lori Aulds was named Regional Sales Director, which made her the plaintiff’s direct supervisor. The two of them, according to the plaintiff, had a sexual relationship that ended several years prior to her promotion. She allegedly remarked about her current relationships to the plaintiff and tried to get him involved in disputes with her new significant other, despite his insistence that it made him uncomfortable.
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A man’s lawsuit against his former employer alleges that the company created multiple pretexts ito justify firing him, and that the company discriminated against him because he is homosexual. Housh v. Home Depot USA, Inc., et al, No. 30-2013-00678843, complaint (Cal. Super. Ct., Orange Co., Oct. 1, 2013). The plaintiff further alleges that the company has sought out pretexts for firing other employees who, like the plaintiff, are older gay men. He claims that the company is acting out of concern for supposedly increased costs associated with such employees. The lawsuit asserts a total of 17 causes of action under common law and state statutes, including age discrimination, gender discrimination, wrongful termination, sexual harassment, and retaliation.

The plaintiff began working for the defendant, Home Depot, in 1987, and worked continuously for the company at several California locations for more than 25 years. He states in his complaint that management used a “Value Wheel” to protect employees from discrimination and other improper treatment. Id. at 5. He alleges that the “Value Wheel” and assorted representations made by management in connection with it constituted promises made to induce him and other employees to continue working for the company, including non-discrimination, merit-based pay and promotion, adequate benefits to prepare for retirement, and no retaliation for reporting “illegal and/or improper conduct.” Id. at 5-6. The company largely followed these promises, the plaintiff claims, until the 2008 recession.

The real estate recession that began in 2008, according to the plaintiff, had a serious impact on the company’s profits and stock price. The plaintiff alleges that the company “set a quota of employees that had to be terminated.” Id. at 8. Managers were allegedly instructed to target employees in three categories for termination: “Older/Higher Paid,” “Gay Males,” and “employees who disclosed improper or illegal conduct.” Id. The company’s management allegedly believed that benefits for gay male employees were more expensive “because of the HIV and AIDS virus.” Id. The plaintiff also claims that the company believed that the passage of California’s Domestic Partnership Equality Act in 2011, which requires employers to provide certain forms of coverage for domestic partners, would be financially damaging.
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