Current Events

Finally, the issue of discrimination against older persons seeking work, those who cannot even submit a job application because they are deliberately shut-out of learning about the open positions because of their age, is garnering some national attention. I have successfully represented numerous age discrimination plaintiffs, female and male, who were employees in the private and public sectors, from cafeteria workers to professionals, and was successful in obtaining six figure settlements for them.

On December 20, 2017, a class action lawsuit on behalf of older workers was filed by the Communications Workers of America (CWA) against hundreds of large employers including Amazon.

Persons may wonder if harassment is actionable,  when they are being ridiculed or otherwise harassed at work by members of their same sex when they do not perceive the harassment as necessarily being “sexual” in nature,  i.e., they do not feel like they are being sexually “ hit on” by the harasser, and they do not perceive it as the harasser being sexually or otherwise attracted to them.

The New Jersey Law Against Discrimination, N.J.

It is rare that a working woman has not known someone, be it herself or others, who had experienced some form of sexual harassment in the workplace. While women are not the only victims, more women are coming out of the closet as to reporting such harassment.

As stated in my last article, if an employee believes he/she has a claim for two or more types discrimination when terminated by the same employer, the terminated employee is bound by the “Entire Controversy Doctrine.” All claims by one employee arising out of the same wrongful acts of an employer, should be filed together within the same lawsuit. 

 However, when there is more than one employee who has a claim against the same employer, it requires a more careful analysis as to whether, in certain specific circumstances, New Jersey law allows for them to each file a lawsuit separately or of they should join together as plaintiffs in one lawsuit.

Again, in certain circumstances, the Entire Controversy Doctrine may require two or more employees to join together in one lawsuit and not file separately. I recently represented several female employees in one discrimination lawsuit that alleged harassment, retaliation, and illegal constructive discharge.

Unfortunately, yes, it sometimes happens that an employer illegally discriminates against a woman with breast cancer because of a bias against women in addition to disability discrimination.  One of the more common forms of discrimination against a female worker with breast cancer is when the employer will not allow an extended FMLA leave that the employer routinely gives to male employees with cancer. Rising female executives may still have to combat a good old boys' club atmosphere which is hostile to the advancement of woman.

Clients have asked me if it possible to have a case of age discrimination, when the person who fired them is older than they are. The answer is, “Yes.” For example, an employee in her 50's may be harassed or terminated because of her age, but the boss who made the termination decision is in his 60's. The persons having the managerial authority as to who to keep and who to let go in termination decisions are frequently older themselves and long-term employees. Just because a person is older, even significantly older by a decade or more, than the terminated employee, it does not constitute an outstanding safeguard employer defense when an employer has to defend on a wrongful termination age discrimination claim.

Businesses attempting to maximize their profits by matching employees of Certain races to the racial demographics of their customers will be breaking both New Jersey and Federal Law. If a customer base is predominately white, the employer may not utilize such racial demographics to hire, train, promote, or retain white workers over non-white workers.

By way of example: a commercial business corporation may not assign black employees to work only in the stores that are in black neighborhoods but not predominately white neighborhoods. In assigning accounts to salespersons, a business may not withhold assigning accounts of white-owned businesses or white customers, to African American or other non-white salespersons. This is true even if the customer has blatantly told the business that they do not want a black salesperson.

While there is no law in New Jersey that specifically prohibits an employer from asking an employee when he/she can retire, this type of questioning could be an indication of the employer’s age bias when coupled with other biased nuances, words or actions. I have represented both private and public employees in age discrimination lawsuits where the plaintiffs were specifically asked that exact question, “How many years until you can retire?” before they were terminated and I was successful in obtaining six figure settlements for these Plaintiffs. 

This kind of questioning in some instances can be part of a larger pattern of age harassment and age bias against an employee, as is alleged in a recent case brought by numerous school teachers in Atlanta in a federal class action lawsuit as reported by FOX news http://www.fox5atlanta.com/news/240631536-story

In this federal class action Atlanta school teachers’ case, what the Plaintiffs’ counsel is presenting as part of the theory of discriminatory evidence, is remarkably similar to facts that were alleged by the plaintiffs in age discrimination cases in which I have successfully represented the employees.

A recent Federal case in Florida underscores the importance of an employer doing a thorough investigation. In Axel v. Fields Motorcars of Florida, Inc., No. 8:15-cv-893-17JSS (M.