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Monday, May 1, 2017

Can it Be Age Discrimination When the Person Who Fired Me Is Older than Me?

Clients have asked me if it possible to have a case of age discrimination, when the person who fired them is older than they are. The answer is, “Yes.” For example, an employee in her 50's may be harassed or terminated because of her age, but the boss who made the termination decision is in his 60's. The persons having the managerial authority as to who to keep and who to let go in termination decisions are frequently older themselves and long-term employees. Just because a person is older, even significantly older by a decade or more, than the terminated employee, it does not constitute an outstanding safeguard employer defense when an employer has to defend on a wrongful termination age discrimination claim.

The reasons that an employer may have an age bias may be a unique peculiarity of the person who commits the discriminatory actions, i.e., just a plain old age bias. If the employer used age as the determining factor as to who to keep and who to let go, in NJ the termination becomes an illegal discriminatory act.

Or could be an attempt to promote a business interest, i.e. by youthful business “branding”, wanting to spin a youthful business image with numerous attenuated youthful associations to the public. While there are some situations where the employer might have a legitimate business interest to enforce certain age limit requirement, for example, having safety concerns in establishing age limits for commercial airline pilots, it is unusual that age is a bona fide occupational qualification “BFOQ” in most jobs.

In disability cases, when safety concerns are raised by the employer as a defense, to terminate an employee based on the safety defense, the employer would have to meet standards established by the New Jersey Supreme Court in Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363 (1988), The Jansen case was a disability discrimination case where the employer unsuccessfully  put forth a safety defense. The Court in Jansen construed the NJLAD to prohibit discrimination against the handicapped, “unless the employer can prove, with a reasonable degree of certainty, that the plaintiff, as the person perceived to be handicapped, poses a serious threat of injury to the health and safety of herself, fellow employees, or to her patients.” Jansen, supra, 110 N.J. at 374.

In age cases, to legally terminate an employee based on the safety defense without committing unlawful discrimination, the employer must reasonably conclude that the employee's age poses a materially enhanced risk of serious injury.

But is age branding legal?

Whether age may be a BFOQ in businesses that have business plan that includes a younger age as part of their branding in order get the job done, in order to be profitable, it is a matter of whether having younger workers is truly essential, and that is a very high hurdle. If an employer argues that age or race is a BFOQ, they may have to pay out big if the matter is litigated. 

Consider the Wet Seal case and the results of its business branding incorporating race. Wet Seal had to pay $7.5 million to settle a race discrimination suit, where the business branding excluded blacks and black workers were not given the same opportunities as white workers. 

Wet Seal’s corporate managers openly talked about their branding and how that controlled their employee hiring and promotion decisions. Wet Seal’s corporate managers stated they wanted employees who had the “Armani look, were white, had blue eyes, thin and blond in order to be profitable.” The EEOC determination, which became  part of the First Amended Complaint filed in a class action lawsuit filed in The United States District Court for the Central District of California under Title VII of the Civil Rights Act of 1964, states that it found that Wet Seal terminated the African-American former manager of its store in King of Prussia, Pa., the day after the retailer’s senior vice president for store operations had inspected that store and several others in the area and sent an e-mail saying, “African Americans dominate — huge issue.” 

As also reported in the New York Times, the African-American former manager stated that Wet Seal managers have openly stated they wanted employees who had “the Armani look, were white, had blue-eyes, thin, and blond in order to be profitable.”

Wet Seal alleged that the African-American manager had resigned voluntarily and that it therefore had taken no adverse employment action against her. But the federal agency found that the senior vice president’s e-mail, which according to the manager she had seen, and Wet Seal’s subsequent sudden laying off of numerous African-Americans had forced her to quit.

Before the African-American former manager was forced out, she had received high ratings in running the King of Prussia store, which was ranked No. 8 among Wet Seal’s more than 500 stores. Her regional manager and district manager had said she had “great energy” and “strong ability” to hold other managers and subordinates accountable in fulfilling their responsibilities. 

According to the EEOC finding, the African-American former manager did not voluntarily resign because the email sent by the senior vice-president after he visited the store and Wet Seal’s subsequent sudden laying off of numerous African-Americans at several stores in Pennsylvania had created a work atmosphere that was so hostile, she had no choice but to leave. The agency called this tantamount to a discharge. 

Wet Seal’s branding business plan of “white, blue-eye, thin and blonde” where the managers openly stated they wanted employees who had the Armani look, were white, had blue-eyes, thin, and blond in order to be profitable” led to Wet Seal’s paying $7.5 million to settle this race discrimination suit, where the business “branding” excluded blacks, and black workers were not given the same opportunities as white workers.

In New Jersey, under the New Jersey Law Against Discrimination (NJLAD) , a person can bring an age claim if the person who discriminated against him/her is older, even much older, and when the worker is under 40 years of age. However the person may not bring a claim under the ADEA, if the the claimant is under 40 years of age. People who are age 40 or older are protected under the ADEA, but the ADEA  does not protect workers under the age of 40. Under the ADEA, age discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. Under the ADEA, it is not illegal for an employer to favor an older worker over a younger worker, even if both workers are age 40 or older.  Not all employers  are covered by the ADEA. This statute only applies to all private employers with 20 or more employees, state and local governments , employment agencies, labor organizations and school districts.  The New Jersey Law Against Discrimination (NJLAD) however applies to all private and public employers in New Jersey regardless of their size.

Fortunately for workers in New Jersey,  workers under age 40 may file age claims under the NJLAD, even if the person who discriminated against them is older by decades.

What You Can Do

If you believe that your employer used age as the determining factor as to who to keep and who to let go, it is important that you consult with an attorney who is experienced in age discrimination. I am an aggressive and compassionate employment law attorney who is experienced in representing older workers. 

If you are being subjected to such unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.


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