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Tuesday, February 20, 2018

Is Someone Too Old to Do Their Job? Age Appropriateness Is a Social Construct

Age discrimination persists as a pervasive and serious problem in the workplace. What some persons consider to be “age appropriateness” is the result of a social construct that is forever changing. Unfortunately, many employers have not caught up with the fact that age is not a factor that should be negatively held against employees in terms of evaluating qualifications to maintain their position. As long as an employee can fulfill their job tasks, their age cannot make them otherwise unqualified or less qualified for their position. There are 72 year olds outperforming 32 year olds all of the time in many occupations. Age should not be a defining factor in most instances of whether someone is too old to do their job.

Age is probably the last category of protected classes that is taken as seriously as are other classes that have protected status from discrimination on the job, such as race and religion. The New Jersey Law Against Discrimination (NJLAD) applies to all New Jersey employers, regardless of size, unlike the federal law, the Age Discrimination in Employment Act (ADEA) which applies only to Employers with at least 20 employees. Under the NJLAD, It is an unlawful employment practice, or an unlawful discrimination, for an employer, because of the age of an individual to discharge or require to retire from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. The NJLAD applies also to employment agencies, labor organizations, government and municipal employees.

Persons who believe they are being subjected to illegal age discrimination frequently have options. I have represented both private and public employees who were over 70 years of age and octogenarians and I was successful in obtaining six figure settlements for these Plaintiffs.

One Should Not Assume That a Mandatory Age-based Retirement Policy Is Legal. Age must Be a Bona Fide Occupational (BFOQ) Qualification for an Employer to Have a Rule Mandating Retirement at a Specified Age.

An employee should not assume that an employer's mandatory age-based retirement policy is legal for their employment, unless retaining employees of that age is prohibited by some other statute or law. Unless mandated by another statute or law, age must be bona fide occupational (BFOQ) qualification for an employer to have a rule mandating retirement at a certain age, and the employer must demonstrate that its rule mandating retirement at a certain age is reasonably necessary to the normal operation of their particular business.

Under the NJLAD,

  • An employer may not refuse to offer you training programs related to your employment because of your age, when the training programs are offered to other employees.
  • The employer may not retaliate against you because you filed an internal complaint with the employer about age discrimination.
  • The employer may not retaliate against you because you filed a lawsuit against the employer alleging age discrimination.
  • The employer may not force you to retire at a certain age (*except for a few narrow exceptions.)

*With certain few narrow exceptions, as when certain statutes stipulate mandatory retirement ages for certain defined public employees for public safety concerns, or in the presence of a bona fide occupational qualification- example, i.e., true safety concerns in some occupations such as for certain airline pilots - if age is the determining factor in the employer's decision-making process as to who to keep and who to fire, then the employer is possibly violating the New Jersey Law Against Discrimination and the ADEA.  

The bona fide occupational qualification (BFOQ) exception to the (ADEA), 29 U.S.C.S. §§ 621-634, and how courts have interpreted BFOQ under the NJLAD has extremely limited scope and application in most employment positions. Although the NJLAD does not prohibit the establishment and requirement of age as bona fide occupational qualification, any exception is intended to be an extremely narrow exception to the general prohibition of age discrimination prohibited by the NJLAD and the ADEA.

The Superior Court of New Jersey, Appellate Division, in Spragg v. Shore Care, 293 N.J. Super. 33, analyzed the legality of a bona fide occupational qualification in terms of the employee’s gender or sex, but the analysis is the same when an employer establishes a mandatory retirement age alleging that it is age that is a bona fide occupational qualification. The burden is on the employer to establish the facts bringing it within the bona fide occupational qualification exception under the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-12(a).

In Spragg v. Shore Care, the employer had to show that there was a factual basis for its requirement that the essence of its business operation would be undermined by failing to employ members of one sex exclusively. The employer had to prove that it had a basis in fact for its conclusion that no members of the sex in question could perform the job adequately; it cannot be based on conjecture. For a bona fide occupational qualification, whether it be it age or sex, etc., to be allowed under law, the employer must prove it is one is one of business necessity, not business convenience or based on the preference of its customers.

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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