Many older workers who are being pushed out of their job or not being promoted feel it is because of their age, but they wonder if they have any evidence to prove age discrimination, particularly if they were hired when they were hired in their 50's or 60's. If you are a worker who is experiencing age discrimination, you should contact this office today for a free consultation. I accept clients from all over NJ. I have represented older employees who were pushed out of jobs because of their age and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages.
What is Relevant Evidence If I Was Hired When Older Than 50?
One of the first rules of evidence to prove age discrimination, or any kind of discrimination, is that it must be “Relevant Evidence”. For evidence to be relevant, there must be a logical connection, even if just a tenuous one, to the fact trying to be proved. Definition of “Relevant Evidence” under the New Jersey Rules of Evidence, Rule 401, means “Evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Phrased another way, evidence is relevant if it tends to make a fact more or less probable than it would be without such evidence. As to age discrimination cases, the fact must be one of consequence in determining whether the employer committed age discrimination.
Relevant evidence only needs to have a tendency that can help determine the probability of a fact. This means even weak evidence can be relevant in some instances. If the case ultimately gets before a jury, it is up to the trier of fact to weigh evidence and determine whether it proves anything or not. Relevant evidence is admissible unless there is a rule excluding it.
Evidence May Be Either Direct or Circumstantial
Direct Evidence. Direct evidence means evidence that directly proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact.
Direct evidence is evidence that directly shows that your employer had an age bias. For example, if your employer made negative comments about your age or expressed a preference for younger workers, this would be direct evidence of age bias. Emails from an employer to another employee stating they would like some “younger looking faces” hired in the workforce (and yes, that happens) would be direct evidence of age bias. However, direct evidence is rare and can be hard to obtain.
Circumstantial Evidence. Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn.
An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. Circumstantial evidence in an age discrimination case is evidence that indirectly shows that your employer discriminated against you because of your age. For example, if your employer replaced you with a much younger person who had less experience or qualifications than you, this would be circumstantial evidence of age discrimination. Circumstantial evidence is more common and easier to obtain than direct evidence.
It is not necessary that facts be proved by direct evidence. They may be proved by direct evidence or circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof. Indeed, in many cases, circumstantial evidence may be more probative, completive and persuasive than direct evidence.
Evidence That Is Helpful to Prove Systemic Problems of Age Bias by Your Employer
Statistical evidence can be helpful to show a systemic problems of age bias in your workplace.
Statistical evidence demonstrates that your employer had a pattern or practice of discriminating against older workers. For example, if your employer disproportionately fired, demoted, or denied promotions to older workers, this would be statistical evidence of age discrimination.
Comparative evidence shows that your employer treated you differently or less favorably than younger workers who were in similar situations. For example, if the quality and quantity of your work product is comparable to that of younger workers who have the same job titles and/or responsibilities as you, yet your employer gave you negative performance reviews, disciplined you, or denied you training opportunities that were given to younger workers, this would be comparative evidence of age discrimination. Comparative evidence can be useful to show that your employer's reasons for its actions were pretextual or false.
What You Can Do to Preserve Evidence.
If you think you are being targeted because of your age, to gather evidence for your claim, you should:
Keep a detailed daily record (at home and not on your work computer, or phone given to you by your employer) (and not through any emails that emanated from your work computer, be it from your personal email or business or corporate email) of any incidents or statements that indicate age bias, discriminatory treatment or harassment by your employer or co-workers. Include dates, times, descriptions of the incident, and the names of any witnesses who were present.
Print out and save any documents or emails that relate to your employment, such as performance evaluations, disciplinary actions, termination notices, etc. It is important that you save all the evaluations, the good ones and the critical ones. Employers sometimes erase all evidence of good performance evaluations if they are thinking about terminating an employee.
Retain a copy of your employment manual that contains any policies or procedures that your employer may use to evaluate you and make employment decisions.
Retain a copy of any policies or procedures that are not in your employment manual that were disseminated by emails or handouts. Your employer may use them as an excuse to fire you by alleging you violated these policies.
If You Quit Your Job, You May Lose Right to Prevail in a Lawsuit
If you are thinking of quitting, or think you will be fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you. In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed.
Let Me Fight for You
I am successful in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of age, race, sex, disability, sexual orientation, and other discrimination. If you have been fired, not had your contract renewed, think you are being pushed out of your job or retaliated against, you should contact this office immediately for a free consultation.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and in every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.