Older employees sometimes must work under the ominous shadow of those who are higher-up in authority making comments to them such as, “When do you think you will retire?” or “Do you and your wife have any retirement plans?” Such comments can be indicative of the employer’s illegal age bias and an illegal attempt to push you out the door by wearing you down and having you resign.
Can Age Be a Legitimate or Bona Fide Occupational Qualification?
With very few exceptions, age can never be a legitimate or bona fide occupational qualification. One should not assume that their employer’s mandatory age-based retirement policy is legal. Age appropriateness for adults, be it in recreational activities, or requirements for employment, is generally a social construction that has no bearing on a person’s actual abilities. Age appropriateness as a tolerated social construction is the underlying backstory to age discrimination in employment. Age discrimination persists as a pervasive and serious problem in the workplace and it is illegal under the New Jersey Law Against Discrimination (NJLAD). See NJ Age Discrimination Lawyer, Oldest Worker Unfairly Criticized, Then Given Poor Evaluations.
Do not sit on your rights! Do not wait until you are terminated. If you think you are being pushed out of your job, or fired, because of your age, contact Hope A. Lang, Attorney at Law today for a free consultation. I have successfully represented upper level executives, managers and other workers who were subjected to age discrimination. This law office accepts cases from all over New Jersey and has locations in Southern, Central and Northern NJ to meet with clients. Call today for a free consultation.
Age must Be a Bona Fide Occupational (BFOQ) Qualification for an Employer to Require Retirement based on a Specified Age.
An employee should never assume that a mandatory age-based retirement policy is legal for their position, unless retaining employees of that age is prohibited by a specific statute or law or very rarely, there is a Bona Fide Occupational (BFOQ) Qualification. Unless mandated by a 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. See NJ Age Discrimination Attorney, Qualified and Experienced IT Specialists Fired Due to Age.
The employer may not force you to retire at a certain age except for a certain narrow statutorily- based exceptions such as when statutes stipulate mandatory retirement ages for certain specific public employee positions because of public safety concerns. An example of a statutorily- based exception occurs where there are true safety concerns such as for certain airline pilots. For example, as to the maximum age a pilot can fly an airplane, according to the Federal Aviation Administration (FAA), in the United States, there are no FAA age limits for pilots except for commercial airline pilots employed by airlines certificated under 14 CFR Part 121. These airlines cannot employ pilots after they reach the age of 65. However, these pilots may stay on with a Part 121 carrier in some other role, such as flight engineer. They can also fly for a company that is not a Part 121 carrier.
Another exception is when age is a bona fide occupational qualification. Although the New Jersey Law Against Discrimination does not specifically prohibit the requirement of age as bona fide occupational qualification (BFOQ), any BFOQ exception is intended to be an extremely narrow exception to the general prohibition of age discrimination. The bona fide occupational qualification exception and how courts have interpreted BFOQ under the NJLAD and the Age Discrimination in Employment Act is extremely limited in scope and application in most employment situations.
The Employer has the Burden to Establish Facts Bringing It Within the BFQO Exception under the New Jersey Law Against Discrimination
Age, race, gender and sex are some of the protected classes under the NJLAD that are protected from discrimination in employment. In Spragg v. Shore Care, 293 N.J. Super. 33, The Superior Court of New Jersey, Appellate Division, analyzed the legality of a bona fide occupational qualification in terms of the worker’s protected class of gender or sex, but the legal analysis is the same for age, ie, when an employer establishes a mandatory retirement age, alleging that age that is a Bona Fide Occupational (BFOQ) 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 demonstrate that 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. It had to prove a factual basis for its conclusion that no members of the sex in question could perform the job adequately; it cannot be an assumption based on conjecture. For a bona fide occupational qualification, whether it be it age or sex, etc., to be permitted under law, the employer must prove it is one is one of business necessity, not business convenience or based on the preferences of its customers.
What You Can Do
If you are being subjected to unlawful workplace age discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation. I have represented numerous employees who were discriminated against because of their age, 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.
I accept 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.