New Jersey Employment Lawyer Blog

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" »

Last week, the New Jersey Supreme Court ruled that each day an employee is paid a lower salary based on a past unlawful discriminatory decision is a separate violation of the New Jersey Law Against Discrimination (LAD). As a result, three tenured Seton Hall University professors can proceed with their age and gender discrimination lawsuit, even though (1) the alleged discriminatory decision was made more than two years before they filed the lawsuit, and (2) the LAD has a two-year statute of limitations.

Specifically, in Alexander v. Seton Hall University, three female professors who are over 60 years old sued Seton Hall and certain school officials. They claim they were paid less than their younger male colleagues. They largely based their claims on the University's 2004-2005 annual report, which shows that Seton Hall pays higher salaries to younger male faculty members than older female faculty members.

However, the trial court dismissed the case, ruling that since the allegedly discriminatory decision was made more than two years before the employees sued, their case was barred by the statute of limitations. That decision was affirmed by New Jersey's Appellate Division. Both courts relied on the United States Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which ruled that the statute of limitations for claims of discriminatory wages under federal law begins when the employer makes the discriminatory decision.

The Ledbetter decision was highly criticized because discriminatory decisions about salary impact employees long after the decisions are made, but employees frequently do not know they have been paid less than their coworkers until it is too late to sue. In response, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which makes it a separate violation of federal law each time a company pays an employee wages, benefits, or other compensation based on a previous discriminatory decision.

Fortunately, the New Jersey Supreme Court disagreed with the two lower courts. It noted that although it often looks at federal case law for guidance, it is not required to follow federal law when it interprets the LAD. Instead of following Ledbetter, it ruled that each payment of discriminatory wages is a separate violation of the LAD, and the two-year statute of limitations applies to each such violation.

Alexander makes it clear that it is possible to sue if you are receiving lower wages based on a past discriminatory decision. But it also makes it clear how important it is not to wait too long to assert your claim since you cannot recover damages for discriminatory wages you received more than two years before you file your lawsuit. Accordingly, it is highly recommended that you contact an employment lawyer as soon as you learn you are being paid less than your coworkers due to your age, gender, race, disability, or another unlawful factor.

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.

Age and gender discrimination are all too common in the workplace. If you have been the victim of unequal pay because of your gender, or if you are facing another form of gender or age discrimination at your job, then you should consider speaking to an experienced employment lawyer who can help protect your rights.

Two weeks ago, the United States Equal Employment Opportunity Commission (EEOC) filed a retaliation lawsuit against New York based Fox News Network LLC, the company that owns and operates the Fox News Channel. According to the EEOC's September 30, 2010 press release, the lawsuit alleges that Fox News retaliated against Catherine Herridge, one of its female news correspondents, after she complained about gender and age discrimination. The EEOC is a federal agency that helps employees enforce their rights under three anti-discrimination laws, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Age Discrimination in Employment Act.

In 2007, Ms. Herridge made several internal complaints that she was experiencing disparate pay and unequal employment opportunities because of her gender and age, the EEOC announced. Fox News conducted an investigation, but found no evidence of age or gender discrimination. In the fall or summer of 2008, several months after Fox News completed its internal investigation, Ms. Herridge refused to sign a new employment agreement with Fox News because it referred to her discrimination complaints. Fox News ignored Ms. Herridge's requests to remove that language from her contract, and ignored her other attempts to negotiate her employment agreement. As a result, instead of entering into a new guaranteed employment contract, Ms. Herridge became an employee at-will. It was not until June 2009, after Ms. Herridge filed a charge of discrimination with the EEOC and the EEOC investigated that Fox News finally removed the language about Ms. Herridge's discrimination complaints from her employment contract.

According to the EEOC's press release, the lawsuit is seeking money damages to compensate Ms. Herridge for Fox New's retaliation, as well as punitive damages and an injunction to prevent Fox News from engaging in further retaliation against employees who oppose discrimination. Discussing the lawsuit, EEOC attorney Lynette A. Barnes stated that "[t]he anti-retaliation provisions of Title VII and other federal anti-discrimination laws are indispensable to the attainment of a workplace free of discrimination." Ms. Barnes further indicated that "[e]mployers must take care that any action taken in response to a discrimination complaint is constructive and not retaliatory."

Continue reading "EEOC Sues Fox News for Retaliation on Behalf of Female Reporter" »

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.