Current Events

Workers who are younger and have an autoimmune disease that limits some of their activities may ask for an accommodation for their disability at work and the employer may comply and allow the accommodation. Yet the same employer may express a reluctance to make a change in a employee’s work environment or a change in that person’s job duties when the worker is older. A corporate mindset that older workers are not as valuable as younger workers is epidemic.

“Autoimmunity” has been defined as when a person's or organism's otherwise healthy defense system of immune responses changes and turns deviant against the person or organism, becoming a system of immune responses going anomalous against its own healthy cells and tissues.

Autoimmune diseases are often most frequently associated with aging, but there are medical and scientific studies that dispute the truth of this conventional wisdom, and these studies suggest a wide spectrum of causation factors other than age, or at least in addition to age, to be the main contributing factor for contracting autoimmune diseases.

A disease that results from such an anomalous immune response is termed an "autoimmune disease". One of the most common examples of a worker with an autoimmune disease is when the employee has rheumatoid arthritis. At least one government study reached a conclusion which contravenes conventional wisdom. It found that persons who are older have a lower prevalence of actually contracting autoimmune diseases in spite of the presence of higher autoimmunity markers. The US Library of Medicine and National Institute for Health released results of study which theorized that a possible explanation for this seeming unlikely pairing, is that older persons have many protective regulatory mechanisms that are characteristic of those in their age bracket, that are not characteristic in those in younger brackets.

This may be of no help to an employee, particularly an older employee who has an autoimmune disease and experiences discrimination in the workplace. Employers sometimes will not provide the reasonable accommodations required by law to allow a person with an autoimmune disease to keep working, especially when the worker is older, thereby acting contrary not only to the ADA, but in engaging in acts of double discrimination -disability and age discrimination- prohibited under the NJLAD.

Employers have a duty to provide a reasonable accommodation for all workers with an autoimmune disease, regardless of their age. Businesses have become savvier to avoid lawsuits and unlike a decade or two ago, less rarely terminate an older worker with an autoimmune disease outright once the sense that the worker might request at some time in the future, an accommodation to keep working. Instead, they will take actions in an attempt to mask their discrimination and/or may apply direct or indirect pressure to get the disabled worker to retire.

Some Tactics Used by Employers Who Do Not Want to Make Accommodations for an Older Worker’s Disability or Who Simply Do Not Want an Older Work Force Are:

• Layoffs with a rehiring process in place, where a person or a class of persons in that employee’s job description is terminated, allegedly due to a downsizing or reorganization or cost cutting and told to re-apply for the position and that the most qualified will be rehired at that position. This is a ruse used by public employers as well as private employers.

• I have litigated these types of age discrimination claims where the plaintiffs who were the most qualified but in their  70's, were let go and re-applied for their employment positions, but  were not rehired, and less qualified persons in their 40's were rehired and I was successful in obtaining six figures monetary compensation for these employees.

• Business reorganization. Businesses and public entities do have a right to reorganize to maximize their profits or support their goals or for general overall cost-cutting. However, if the employer uses the words “job elimination” as part of the reorganization, it could be a pretext to replace the disabled or older employees with non-disabled or younger workers. Not too many jobs can usually be “eliminated.” If the employer is not really eliminating the employment position, just recharacterizing it by changing the title, and hiring or transferring a worker who is non-disabled or younger is into the position, the eliminated worker may have age or disability discrimination claim.

• Reductions in force. (RIF)When there are reductions in force, the company is required to attach to a layoff notice, statistics which list the other employees who are included in the RIF and excluded from the RIF along with their respective ages. Employers sometimes manipulate the statistics on these notices to hide the discrimination.

• If you, an older employee,  are the only person who is laid off, or only a very small percentage of the workforce is let go, you may be able to show discrimination when the younger workers who are not part of the protected class of age, are the only ones retained.

• Your employer drastically slashes your hours. A particularly cruel way to force a senior or disabled employee to quit, is to cut their hours to the point of distress. This may be a singularly grievous act of discrimination when it only occurs to a person in a protected class. It is excruciating to the employee and the resulting trauma often does force the employee to quit, which is not really voluntary resignation.