Employees may sense they are being discriminated at work because of their age or other legally protected class. Yet they may think that they will never be able to prove discrimination against them if they cannot name a witness who would come forward. This is not true.
There is rarely a witness who may provide evidence of direct age discrimination. A smoking gun witness does happen more frequently than some might imagine, but the absence of witnesses or direct evidence does not necessarily mean a plaintiff cannot prevail in a discrimination case. If you think you are being discriminated against because of your age, you should contact this office for a free consultation.
There Is Rarely Direct Evidence of Discriminatory Motive.
Recognizing that in employment discrimination cases there is rarely direct evidence of discriminatory motive, the US Supreme Court established a three-step framework of proof that allows employees to demonstrate discrimination without witnesses and allow a case to go forward and not be dismissed at the initial stage. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). New Jersey Courts have adopted this US Supreme Court three-step framework of proof in discrimination cases filed under the NJ Law Against Discrimination (LAD).
Framework of Proof in Employment Discrimination Cases Filed under the NJ Law Against Discrimination Is Based on a Three-pronged Burden-shifting Procedure.
This framework is based on a three-pronged burden-shifting procedure outlined by the Court in McDonnell Douglas Corp., to demonstrate discrimination. It requires, as the first prong, an initial presentation by the Plaintiff of a four-part prima facie case.
First Prong: the Plaintiff’s Prima Facie Case
“Prima facie case” translates from Latin as the case at “first sight.” It is a way for the Court to evaluate a case at an initial stage before it ever proceeds to a trial or a jury, to evaluate if there is any support for the Plaintiff to continue in the lawsuit and bring it to trial. The Plaintiff, the party with the initial burden of proof, presents a prima facie case if four elements are met. More on the
Prima Facie Case below. *
Second Prong: the Burden Shifts to Defendant to Prove a Legitimate Non-discriminatory Reason for the Adverse Action Against Plaintiff
If the plaintiff meets all four elements of the first prong, the prima facie case, then the burden shifts in the second prong to the defendant (employer), to prove a legitimate non-discriminatory reason for the adverse action against Plaintiff, examples: the employer was downsizing its operations or implementing a business reorganization, etc.
Third Prong, Burden Shifts Back to Plaintiff to Prove Defendant’s Alleged Non-Discriminatory Reason Is a Pretext for Discrimination.
Once the defendant in the second prong of burden shifting, presents a purported legitimate business reason for the adverse action, then the burden shifts back to the Plaintiff to prove the Defendant’s alleged business reason is a fabrication and a pretext for illegal discrimination.
What Is Needed for the Prima Facie Case.
Traditionally, the courts following McDonnell Douglas Corp., have pointed to four elements in the initial first prong, a plaintiff’s prima facie case. At this first prong, to establish a prima facie case of discrimination under the LAD, a plaintiff must show that:
1. Plaintiff is a member of a protected class. (i.e., an older worker, a racial minority, or female etc.);
2. Plaintiff is qualified for the position.
Discrimination law has evolved as to this second element in the prima facie case; courts have held that if a plaintiff has been performing the job, it is assumed that the Plaintiff is qualified for the position, sufficient to satisfy the second element of the prima facie case.
3. Plaintiff suffered an adverse employment action (such as termination, demotion, or denial of promotion); and
4. Employees who are not members of the protected class did not similarity suffer the adverse employment action. As the law has evolved, this fourth element has been relaxed by later courts.
The courts have established that the plaintiff’s burden in establishing the prima facie case, is not an onerous one and can be easily met.
Many courts have adopted a flexible approach in regard to these four elements, and as the law has evolved, in particular have relaxed or changed the fourth element of a plaintiff’s prima facie case. The Court of Appeals for the Third Circuit provides appellate review of cases tried in the US District Courts within the geographic area of its jurisdiction, which includes New Jersey. The Third Circuit Court of Appeals has rejected the requirement as to the fourth element that a discrimination plaintiff must show that the plaintiff has been treated less favorably than a person outside the same protected class. The Third Circuit made clear that plaintiffs satisfy the fourth element when they present evidence that they were subjected to an adverse employment action under circumstances that give rise to an inference of discrimination. If the Plaintiff establishes these four elements, the case may go forward in the litigation. If not, the case will be dismissed.
Again, if a plaintiff meets all four elements of the prima facie case, it does not mean the Plaintiff wins the case; it just allows the case to move forward and not be dismissed in the early stage of litigation.
As the case moves forward, both parties ask for and answer discovery requests. There will be sworn depositions before a Court Reporter of the parties and persons who may have relevant Evidence. It is here that a plaintiff may obtain relevant evidence to prove the discrimination.
Don’t Sit on Your Rights
If you are an employee who is experiencing discrimination, don’t sit on your rights. If you think you are being discriminated against because of your age, you should contact this office today for a free consultation. I have represented numerous private and public employees who were discriminated against because of their age, who did not have any direct witnesses, and I was successful in recovering multiple six-figure financial compensation for their emotional pain and suffering, and moneys for lost wages, both for past lost wages and projected future lost wages.
If you resign, you may lose right to prevail in a lawsuit.
In many instances of discrimination and retaliation, if you resign, 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.
If you are thinking of resigning, or think you will be fired, or have been fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you.
If you are being subjected to such unlawful workplace discrimination or believe you are being pushed out of your job, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
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 every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.