New Jersey Employment Lawyer Blog

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.

The 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.

Continue reading "Third Circuit Finds No Evidence of Discrimination Necessary to Prove Discrimination Case" »

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.

TD 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.

Continue reading "New Jersey Court Permits Age Discrimination Lawsuit Because Company Retained Younger Employees" »

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:

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

Continue reading "EEOC Clarifies Reasonable Factors Other Than Age Defense" »

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.

Continue reading "Job Candidate Can Pursue Age Discrimination Claim Based on Decision by Independent Contractor" »

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.

Continue reading "Appellate Court Reduces $10 Million Punitive Damages Award For Age Discrimination to $2,465,000" »

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.

Continue reading "EEOC Sues Port Authority of NY & NJ for Sex and Age Discrimination" »

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.

The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating against employees on the basis of age. Among other things, it prohibits employers from firing, refusing to hire or requiring an employee to retire because of their age.

However, the LAD expressly does not prohibit employers from refusing to hire or promote a person over 70 years old. As a result, someone who is not hired or promoted because they are over seventy years old does not have an age discrimination claim under the LAD.

On April 23, 2009, in Nini v. Mercer County Community College, the New Jersey Appellate Division ruled that this over-seventy exception does not apply to a company's failure to renew an employment contract. In other words, a company violates the LAD if it decides not to renew an employment contract of an individual who is over 70 years old based on the employee's age.

The case involves Rose Nini, who worked as an executive assistant for Mercer County Community College (MCCC) from 1979 to June 30, 2005. She worked pursuant to a series of renewable employment contracts. In June 2005, MCCC chose not to renew her contract for an additional three years term. At the time, Ms. Nini was 73 years old.

According to Ms. Nini, she had substantial evidence of age discrimination. For example, during the nearly 25 years before MCCC told her it might not renew her contract, she never received a poor performance review. Her supervisor then made it clear that he thought she should not be working at her age, that other employees her age were considering retiring, and that he thought she should retire too. Several MCCC department heads also discussed "age and incompetence," "dead wood," and made jokes about getting rid of the "oldest employees." Ms. Nini also heard that MCCC's Human Relations Director said the college needed to "get rid of the old-timers" and "bring in new blood."

In analyzing the LAD's exception regarding the right not to hire or promote an employee over seventy years old, the Appellate Division stated that the nonrenewal of a contract is the equivalent of a termination, rather than a refusal to hire. Previous New Jersey cases have recognized there is little or no difference between failing to extend or renew an employment contract and a decision to fire an employee. Thus, the Court ruled that the over-seventy exception does not apply to a decision not to renew an employment contract, meaning it violates the LAD if an employer chooses not to renew the contract of an employee because she is over 70 years old. Accordingly, the Court sent the case back to the lower Court so Ms. Nini could further pursue her age discrimination case.

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.