The Appellate Division of New Jersey Superior Court recently reversed a summary judgment entered in a trial court in favor of the defendant in an age discrimination case brought under the New Jersey Law Against Discrimination. The trial judge concluded that the plaintiff had failed to prove age discrimination under the LAD because the 69 year old plaintiff had been replaced in part by a 62 year old. The trial judge thought that the replacement was not “significantly younger” than plaintiff, and thus that no age discrimination had been proven.
In reversing, the Appellate Division noted that the plaintiff's teaching duties were taken over by a number of partial replacements who were as much as 22 years younger than she. Thus, the court held that the summary judgment was based upon too mechanistic an analysis.
Going further, the court note that:
For future guidance, we would also observe that a comparison of the plaintiff's age with her alleged replacements' ages is not the sole means of generating an inference of age discrimination. The fourth element is “flexible” and “can be satisfied differently in differing factual scenarios,” including: actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, preferential treatment given to employees outside the protected class, and, in a corporate down-sizing, the systematic transfer of a discharged employee's duties to other employees, or a pattern of recommending the plaintiff for positions for which he or she is not qualified and failure to surface plaintiff's name for positions for which he or she is well-qualified. A plaintiff might also rely upon the fact that the defendant, following plaintiff's termination, continued to seek applicants to fill the position, or, more generally, upon the timing or sequence of events leading to the plaintiff's termination.
In short, the court held that there is more than one way to skin an age-discrimination cat.
The takeaway for business: In making decisions about age-protected (40+) employees, it is risky to rely upon a bare evaluation of ages among those who are to be fired and those to be retained. The analysis is more subtle than that.
It is also important to mention that the court said in a footnote that, had the case been decided under the federal Age Discrimination in Employment Act [ADEA], the result would have been different. As we have noted in various posts over time, New Jersey's state employment law often is more favorable to employees than similar federal statutes. Because the federal laws are more familar to the general public – not to mention non-New Jersey lawyers – poor decisions can be made by assuming that federal law applies to all firing situations. In NJ, the opposite is almost always true: few employment litigations in this state are founded upon federal employment discrimination statutes, and no employment decisions can be safely made without considering the impact of New Jersey state law.