Proving Age Discrimination When You Are Replaced by Someone Only Slightly Younger

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.