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Articles Posted in Age Discrimination

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A recent age discrimination case from the United States District Court for the District of New Jersey is a helpful reminder that just because your employer has a good excuse for its decision to fire you, it does not necessarily mean the company did not violate the law.

Carol Natale began working for East Coast Salon Services, Inc., in November 2006. At the time she was 59 years old.   A little over five years later, the salon’s owner, Stan Klet, called the store. Ms. Natale answered the telephone by saying “East Coast Salon, how can I help you?” Ms. Klet claimed Ms. Natale violated company policy by failing to give her name when she answered the phone. He also claimed Ms. Natale challenged him when he told her she had violated this policy. In contrast, Ms. Natale says she told Mr. Klet that nobody ever told her to provide her name when she answers the telephone. She also claims she apologized to Mr. Klet during the call and that she did not argue with him.

Beauty Supply Discrimination LawsuitAfter checking with its Human Resources Department, the company fired Ms. Natale. It claims it fired her because she was insubordinate, argumentative and disrespectful during the call with Mr. Klet.

Ms. Natale, who was 66 years old at the time, filed a lawsuit against the salon and Mr. Klet. She alleges they fired her in violation of the Age Discrimination in Employment Act (“ADEA”). The defendants eventually filed a motion for summary judgment, asking the judge to dismiss the case against them.

In Natale v. East Coast Salon Services, Inc., the trial judge denied that motion. He recognized that employers have the right to fire employees because they engage in rude or disrespectful behavior. However, he found enough evidence that a reasonable jury could conclude Ms. Natale’s age was a factor in the salon’s decision to fire her.

In essence, the judge concluded that a jury could find Ms. Natale’s immediate supervisor, Faith Fritz, actually made the decision to fire her before Mr. Klet’s telephone call with her. The evidence to support this includes the fact that Ms. Fritz apparently made discriminatory comments about Ms. Natale’s age. For instance, Ms. Natale claims Ms. Fritz told her she was wearing “old lady pull up pants”; indicated she would “look younger if [her] nails were squared off”; sent Ms. Natale home for wearing “old lady shoes”; described her sneakers as making her look like a “retarded old nurse”; and claimed Ms. Natale was “old enough to be her grandmother.”

The judge explained that even though Ms. Fritz may not have made the ultimate decision to fire Ms. Natale, discriminatory comments by someone who did not make the decision can “be used to build a circumstantial case of discrimination.” He ruled it is up to a jury to determine whether Ms. Fritz’s discriminatory comments support the conclusion that the salon fired Ms. Natale because of her age, or merely were stray remarks.

The judge also identified other evidence that could support an inference of discrimination. For example, he noted Ms. Natale testified that in October 2011 Ms. Fritz took away her Tuesday shifts and instead assigned them to an employee who was 15 years younger than her. He also recognized that Ms. Natale has evidence indicating Ms. Fritz recommended firing her and the salon had hired her replacement before she even received the telephone call from Mr. Klet. In other words, the judge found evidence that the salon’s justification for firing Ms. Natale was a pretext (excuse to cover up) age discrimination. Accordingly, he denied the company’s motion for summary judgment to allow a jury to decide whether the salon discriminated against Ms. Natale in violation of the ADEA.

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Age discrimination occurs frequently but often is subtle. You may be certain you were fired because of your age, but not have any direct proof or “smoking gun” evidence. Fortunately, that does not necessarily mean you cannot prove your claim.

Employees who want to prove they were fired because of their age frequently try to show their employers replaced them with someone significantly younger. However, as a recent case demonstrates, this is not difficult to do and is not necessarily required.

Marion Cohen worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) as an associate professor of anatomy and cell biology and injury sciences pursuant to a series of one, two and three-year employment contracts. In late 2008 or early 2009 UMDNJ informed her it was not going to renew her contract, supposedly due to budget cuts. At the time, Ms. Cohen was 69 years old.

Ms. Cohen subsequently sued UMDNJ for age discrimination under the New Jersey Law Against Discrimination (LAD). However, the trial judge dismissed her case on a motion for summary judgment, finding she did not have sufficient evidence to prove UMDNJ either sought to or in fact replaced her with someone younger, and had no evidence that her employer disproportionately terminated older employees. Ms. Cohen appealed.

In Cohen v. UMDNJ the Appellate Division reversed the trial court’s ruling. As the court explained, an employee does not necessarily need to show a significant difference in age to support a finding of discrimination. It quoted Bergen Commercial Bank v. Sisler, a 1999 New Jersey Supreme Court opinion which recognizes it is unusual for a company to replace a sixty-year-old employee with someone in his or her twenties. Rather, “the sixty-year-old will be replaced by a fifty-five-year-old, who, in turn, is succeeded by a person in the forties, who also will be replaced by a younger person.”

The Appellate Court found evidence that Ms. Cohen’s former job duties were redistributed to a number of coworkers who ranged between seven and twenty-two years younger than Ms. Cohen. It found this was enough to support an inference of age discrimination. The appellate court also noted additional evidence suggesting UMDNJ’s explanation for it decision not to renew her contract, rather than terminating one of her replacements, was a pretext (or excuse to cover up) for age discrimination.

The Appellate Division also noted it is not always necessary to compare the age of the employee bringing a discrimination lawsuit to the age of her replacement. For example, other factors supporting an inference of age discrimination can include discriminatory actions or comments by someone involved in the termination decision (or another adverse employment action at issue in the case), favoritism toward younger employees, or a pattern of recommending the older worker for positions for which she is not qualified or failing to consider her for positions for which she is qualified. Likewise, depending on the circumstances, the timing or sequence of events leading up to the decision to fire the employee also can support a finding of discrimination.

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Last month, the Third Circuit Court of Appeals recognized that an employee does not need to have any evidence of discrimination before she can present her case to a jury. The Third Circuit is the federal court that handles appeals from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

Unemployed after discrimination.jpgThe employee who brought the case, Mary Burton, worked for Teleflex Inc. as a Vice President of New Business Development. On June 3, 2008 she got into a disagreement with her supervisor, Edward Boarini. Mr. Boarini claims Ms. Burton resigned during the meeting. In contrast, Ms. Burton claims she mentioned the possibility of resigning, but did not actually resign. At the time, Ms. Burton was 68 years old.

According to Ms. Burton, she did not report to work the next two days because she was upset about the meeting. She then took a preplanned vacation. On the day she was scheduled to return to work, Teleflex sent her a letter indicating it was accepting her resignation.

After her lawyer unsuccessfully attempted to negotiate a severance package, Ms. Burton filed a lawsuit claiming the company’s decision to fire her was age discrimination in violation of the Age Discrimination in Employment Act (ADEA), and gender discrimination in violation of Title VII of the Civil Rights Act of 1964. But the District Court dismissed Ms. Burton’s case. It found she voluntarily resigned, and therefore could not pursue a wrongful termination claim. It also found that even if she did not intend to resign, there was no evidence the company fired her because of her age or gender, rather than because it believed she had resigned.

But on appeal, the Third Circuit reversed. It found that since there is a factual dispute whether Ms. Burton actually resigned, a jury needs to decide whose version of the events is true. It explained that a jury can conclude Ms. Burton was fired based on her testimony that she never said she was resigning, as well as the fact that she never tendered a resignation letter, never told anyone she was resigning, and the company merely took Mr. Boarini’s word that she had resigned without confirming it with her.

The Third Circuit further ruled that a jury can find Teleflex’s decision to fire Ms. Burton because of her age or gender even though there is no evidence of discrimination. It explained that one way an employee can prove her case is by pointing out “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s explanation for terminating her. In essence, it ruled that a jury can find Teleflex lied when it claimed it believed Ms. Burton had resigned, and can conclude the reason the company lied was to cover up age or gender discrimination. The Third Circuit’s opinion in Burton v. Teleflex Inc. is published, meaning it is a binding legal precedent.

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Last month, a federal judge in New Jersey allowed a group of employees to proceed with their class action age discrimination lawsuit even though they do not claim the company hired younger employees to replace them.

In Bratek v. TD Bank, NA, four customer service representatives, Edna Bratek, Diane Deluca, Lois Skoff, and David Steinberg, claim TD Bank fired them because of their age. They were each over 60 years old when TD Bank included them in a reduction in force. They sued, claiming the company targeted older employees, in violation of the New Jersey Law Against Discrimination.

TD Bank moved to dismiss the case, claiming the employees did not set forth facts which, if true, would prove age discrimination. In particular, they argued that the lawsuit does not even allege the Bank hired younger customer service representatives to replace the older employees it fired. The Court agreed that the employees did not claim the Bank had replaced them with younger employees, but it found they could proceed with their case on another theory. It recognized that an employee can set forth a claim of discrimination in a case involving a reduction-in-force by alleging the company retained one or more younger employees to perform his job. Thus, for example, an employee can claim the company gave his job duties to younger employees who it chose not to lay off.

Older employee faces age discrimination.jpgTD Bank also argued that even though the lawsuit named 18 customer service employees under 40 years old who the company retained after the reduction-in-force that was a small fraction of the customer service employees it retained, is statistically meaningless, and is not enough to support an inference of age discrimination. The company claimed this was particularly true since the lawsuit is a class action filed on behalf of hundreds (and potentially as many as a thousand) older customer service representatives who lost their jobs in the reduction-in-force.

The district judge rejected this argument. He recognized it would be extremely difficult for an employee filing a class action discrimination lawsuit to list the names and ages of a large percentage of the employees who the company retained. It also recognized that a lawsuit only needs to set forth facts that are compatible with discrimination to support an inference of discrimination. Accordingly, he concluded that providing the names and ages of several younger customer service representatives who the Bank retained was enough for the employees to proceed with their case.

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On March 29, 2012, the United States Equal Employment Opportunity issued new regulations regarding the Age Discrimination in Employment Act (ADEA). Specifically, the regulations relate to the “reasonable factors other than age” defense to disparate-impact claims. A disparate impact claim is when a company has a policy that appears to be neutral on its face, but in practice it disproportionately harms a legally protected group. A policy that has a disparate impacted based on age violates the ADEA unless it is based on reasonable factors other than age.

Under the new regulations, an employee who claims a company’s policy or practice has a disparate impact based on age is required to identify the specific policy he claims has a disparate impact on older workers. However, the employer has the burden to prove it has a reasonable basis for the policy other than age.

The regulations define “reasonable” to mean that an objectively reasonable employer would conclude the policy (1) is reasonably designed to meet a legitimate business purpose, and (2) was applied in a way that reasonably achieves that purpose. Some of the factors relevant to determining whether a factor on than age is reasonable include:Stressed_Mature_Business_Man.jpg

  1. The extent to which the policy is related to the employer’s stated business purpose;
  2. The degree to which the employer accurately defined and applied the policy, and provided guidance and training to the individuals who will apply it, in order to avoid age discrimination;
  3. The extent to which the employer limited the discretion of supervisors when they apply the policy;
  4. The degree to which the company evaluated the policy’s impact on older employees; and
  5. The extent to which the policy harms older workers in terms of the degree of harm and the number of employees who are harmed; and the degree to which the employer took steps to minimize the harm, compared to the cost of taking those steps

The regulations further clarify that the defense is only available in disparate impact case. It is not available in disparate treatment cases, meaning cases in which an employee claims his employer intentionally discriminated against him because of age.

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Late last month, a Federal Judge in the Southern District of New York ruled that a job candidate can continue with his age discrimination claim against a prospective employer based on a discriminatory hiring decision made by independent contractors who had the apparent authority to make hiring decisions on the employer’s behalf. Apparent authority is when a company’s actions lead someone else to incorrectly believe that he or she is an employee or agent of the company. This decision follows an earlier decision by the Second Circuit Court of Appeals in the same case, which recognized that Employers Can Be Held Liable for Discriminatory Hiring Decisions Made By Independent Contractors.

The case, Halpert v. Manhattan Apartments, Inc., involves Michael Halpert, who was applying for a position as a “shower” for Manhattan Apartments, Inc. He was interviewed by Robert Brooks, a salesperson who worked for Manhattan Apartments as an independent contractor. Mr. Brooks did not have the authority to hire employees on behalf of Manhattan Apartments.

During Mr. Halpert’s job interview, Mr. Brooks indicated that Mr. Halpert was “too old” for the job. Several days later, Manhattan Apartments’ receptionist said the company was not hiring Mr. Halpert because “we were looking for someone younger.” Mr. Brooks then repeated that Mr. Halpert was not qualified for the job because of his age.

Mr. Halpert sued Manhattan Apartments, claiming it failed to hire him because of his age in violation of the Age Discrimination in Employment Act (ADEA). After the Second Circuit ruled that an employer could potentially be held liable for the actions of an independent contractor, Manhattan Apartments filed a motion for summary judgment, arguing that Mr. Halpert was not its employee or agent, and there was not enough evidence to prove Mr. Brooks had the apparent authority to hire employees on its behalf.

However, the District Court disagreed. It found there was enough evidence for a jury to conclude that Manhattan Apartments had the apparent authority to hire Mr. Halpert. This evidence includes the fact that Manhattan Apartments allowed Mr. Brooks to use its offices, to answer his phones by saying “Manhattan Apartments, Inc.,” and to use business card that identify himself as a “Licensed Assc. Broker” for “Manhattan Apartments Inc.” It also included the fact that Manhattan Apartments’ receptionist explained the decision not to hire Mr. Halpert by saying that “we were looking for someone younger.” It therefore denied Manhattan Apartments’ motion for summary judgment to potentially give Mr. Brooks an opportunity to prove his case at a trial.

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Earlier this month, New Jersey’s Appellate Division reduced a punitive damages award in an age discrimination case in which the jury had awarded $10 million, to slightly less than $2.5 million. Punitive damages are awarded to punish a defendant when its actions are especially egregious.

The Evidence of Age Discrimination

Nicholas Saffos worked for Avaya, Inc. and its predecessors, AT&T and Lucent Technologies, for more than 20 years. In 2002, Avaya hired M. Foster Werner, Jr., as the head of Mr. Saffos’ department. Mr. Saffos quickly noticed that Mr. Werner was firing employees who were over 40 years old, and replacing them with younger workers. He also noticed that Mr. Werner was favoring the younger employees in his department.

In 2003, Mr. Werner suddenly began criticizing Mr. Saffos’ job performance and examining his work, even though he had received positive performance reviews in the past. In August 2003, Mr. Werner placed Mr. Saffos on a Performance Improvement Plan (“PIP”). Avaya fired him 30 days later. At the time, Mr. Saffos was 49 years old. Avaya hired a 33-year-old to replace him. Mr. Saffoshas other evidence of age discrimination, including the fact that the average age of an employee in the department decreased by 10 years during the first two years that Mr. Werner was in charge.

The Jury Award

After a trial, a jury found in Mr. Saffos’ favor and awarded him $250,000 for emotional distress, $325,500 for past lost wages (“back pay”), $167,500 for future lost wages (“front pay”), and $10 million on punitive damages. However, the trial judge reduced the punitive damages to a little over $3.7 million, which was five times the other damages the jury had awarded because he believed the jury’s award was unreasonably high. Both sides appealed.

The Appellate Court Reduced the Punitive Damages Award

On appeal, in Saffos v. Avaya Inc., the Appellate Division reduced the punitive damages even further. It stated that although courts are not required to limit punitive damages to 5 times the actual damages, the trial judge acted properly when he used that as a guideline to find the punitive damages award was disproportionate to the harm Mr. Saffos experienced and disproportionate to the damages he recovered.

However, it ruled that emotional distress damages often include a punitive element, and the $250,000 the jury awarded to Mr. Saffos for emotional distress already included a punitive element since Mr. Saffos did not suffer any physical harm as a result of the emotional distress, and he did not need any psychiatric treatment. As a result, it concluded that the emotional distress damages should not have be included when calculating the punitive damages as 5 times the jury’s award. The Appellate Division therefore reduced the punitive damages award to just under $2.5 million, which is 5 times the economic damages the jury awarded.

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The United States Equal Employment Opportunity Commission (EEOC) recently sued the Port Authority of NY & NJ, claiming the Port Authority violated the Equal Pay Act (“EPA”) by paying non-supervisory female lawyers less than their male counterparts. The EPA is a federal law that prohibits employers from considering gender as a basis for paying employees different wages for the same work. The lawsuit also alleges that the Port Authority violated the Age Discrimination in Employment Act (“ADEA”) by firing older attorneys and replacing them with younger attorneys. The ADEA is a federal law that prohibits age discrimination in employment.

According to the EEOC’s press release, the Port Authority paid male attorneys more than female attorneys for work requiring the same skill, effort and responsibility. The EEOC claims the gender pay disparity occurred regardless of the attorney’s job assignment, years of service, or date of admission to the bar.

The allegations stem from the Port Authority’s decision to fire two female attorneys over the age of 40 as part of a purported “reduction in force.” Earlier this year, the EEOC attempted to reach an amicable settlement with the Port Authority, but those efforts failed. It then filed the lawsuit in the United States District Court for the Southern District of New York.

As Louis Graziano, the attorney handling the case for the EEOC, stated:

Achieving a work force that embodies equal pay for equal work and eliminates sex-based pay discrimination has been the objective of federal law for nearly 50 years. This lawsuit makes it clear that the unfortunate reality – that at some workplaces women still earn less than men, even though they are performing the same work and have the same qualifications – continues to plague the workplace and will not be tolerated.

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In June 2009, I discussed the New Jersey Appellate Division’s age discrimination ruling that it is illegal for an employer not to renew an employment contract because the employee is over 70 years old. The New Jersey Supreme Court recently agreed, and affirmed the Appellate Division’s decision.

Specifically, in Nini v. Mercer County Community College, New Jersey’s highest court ruled that a company’s decision not to renew an employment contract is more like firing a current employee than deciding not to hire a job candidate. As a result, the Court concluded that even though the New Jersey Law Against Discrimination (LAD) allows employers to refuse to hire employees because they are over 70 years old, that exception does not apply when a company decides not to renew an employee’s contract after he or she turns 70.

In explaining its decision, the New Jersey Supreme Court stated that the purpose of the LAD is to protect New Jersey citizens “from all forms of discrimination in employment and, in particular, to protect our older citizens from being forced out of the workplace based solely on age.” It also indicated that the over 70 exception is meant to allow employers to avoid the cost of training new employees who have “limited long-term prospects.” However, that does not apply to an employee who already has been working for the company and does not need training.

If you are interested in more information about the facts of Nini, then please read my previous article, New Jersey Law Prohibits Refusal to Renew Contract Because Employee is Over 70 Years Old. If you work in New York or New Jersey, and you have been fired, harassed, or experienced any other discrimination because of your age, then you should consider contacting one of our experienced age discrimination lawyers.

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Supreme Court Rules Employer Has Burden to Prove Adverse Employment Action Based on Reasonable Factors Other Than Age

The Age Discrimination in Employment Act of 1967, 29 U.S.C. 621, et seq. (“ADEA”), is a federal law that prohibits discrimination in employment because of age. On June 19, 2008, the United States Supreme Court made it easier for employees to prevail in disparate impact claims under the ADEA, by placing an important burden of proof on the employer. A disparate impact case under the ADEA is when an individual seeks to prove that his or her employer illegally discriminated against him or her because of age, even though it did not necessarily intend to discriminate, because it used a specific test, requirement, or practice that disproportionately harmed employees who are at least 40 years old.

In that case, Meacham v. Knolls Atomic Power Laboratory, the Supreme Court interpreted a provision of the ADEA that permits an employer to take an adverse employment action against an employee, even if the employment action is “otherwise prohibited” by the ADEA, as long as the adverse action is “based on reasonable factors other than age.” The Supreme Court ruled that if an employer seeks to rely on that defense, it has the burden to prove that its decision was based on a reasonable factor other than age.

In Meacham, Knolls Atomic Power Laboratory was planning to lay off a number of employees. The company had its supervisors rate their subordinates based on their “performance,” “flexibility,” and “critical skills.” Knolls totaled those scores, and gave the employees additional points based on their years of service. It then used those totals to decide who to lay off. Thirty of the 31 salaried employees the company laid off were at least 40 years old. Twenty-eight of those 31 employees sued under the ADEA, claiming Knolls illegally fired them because of their age.

At the trial, a jury found Knolls had violated the ADEA because its layoff procedure had a disparate impact based on age.

Specifically, the jury found that although the plaintiffs did not prove that Knolls intentionally discriminated against them, they did prove that Knolls’ method of deciding who to lay off disproportionately harmed older workers. The United States Court of Appeals for the Second Circuit initially affirmed the jury’s findings, but after the United States Supreme Court asked it to reconsider, the Second Circuit reversed itself and ruled in favor of Knolls. The Supreme Court then agreed to hear the case, and eventually reversed the Second Circuit and reinstated the jury’s finding that Knolls’ policy unlawfully discriminated because of age.

In reaching its conclusion that the employer has the burden to prove the “reasonable factors other than age” defense, the Supreme Court looked at another provision of the ADEA, the bona fide occupational qualification (“BFOQ”) defense. The BFOQ defense states that it is not unlawful for an employer to take adverse employment actions otherwise prohibited by the ADEA “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” In other words, the ADEA permits employers to discriminate based on age considering age is legitimately necessary under the circumstances. For example, it would not be illegal to consider criteria for a particular role in a movie that has a disparate impact on age, if the part calls for someone of a particular age. The Supreme Court has previously recognized that the employer has the burden to establish the BFOQ affirmative defense.

The Supreme Court also relied on previous decisions in which it recognized that the employer has the burden of proof to establish similar defenses under other federal anti-discrimination laws. Specifically, it has previously ruled that the employer has the burden of proof with respect to the defense that a pay differential is based on “any other factor other than sex” under the Equal Pay Act of 1963 (“EPA”), and that the employer has the burden of proof to establish an exemption under the Fair Labor Standards Act of 1938 (“FLSA”). The Supreme Court found that the reasonable factor other than age defense was similar to those provisions, and that therefore the burden of proof should be on the employer.

Thus, the Supreme Court made it clear that once an employee establishes that a specific test, requirement, or practice of his or her employer disproportionately harms older workers, the employee will win his or her case unless the employer can prove that age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or can show that its decision was based on a reasonable factor other than age. As the Supreme Court recognized, that not only makes it easier for employees to win disparate impact cases under the ADEA, but it is also likely to impact the way some employers make layoff decisions. It is therefore likely to further support the primary goal of the ADEA: eliminating age discrimination from the workplace.

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