A court correctly dismissed claims of age discrimination, IMO. But, this employment lawyer still has a bone to pick.


Last night, I read a NJ Appellate Division opinion about a plaintiff in his fifties who claimed his age motivated the defendant to end his employment.

Spoiler alert: it didn’t.

There were many reasons why the appellate court affirmed the trial court’s decision to grant summary judgment in favor of the defendant.

First, the plaintiff had all sorts of well-documents performance issues. The defendant rated the plaintiff the lowest-rated person on his subteam in the three years before his termination and had consistently criticized his performance in written evaluations. As such, the defendant never promoted the plaintiff, who went several years without a pay raise.

Second, a hallmark of age discrimination in termination cases was missing. There was no evidence that the defendant hired someone substantially younger to replace the plaintiff.

The appellate court also noted the plaintiff’s age at hire (53) and termination (58). Why would an employer that hired someone in a protected age class let age animus motivate the decision to terminate the same employee a few years later? Sure, a factfinder could have been skeptical if the decision-makers were different. But, here, the same decision-maker was involved in both employment decisions. Did he suddenly become biased against older workers? That seems unlikely.

For these reasons, I agreed with the court’s decision to dismiss the plaintiff’s age discrimination claims.

But, like I said, I have a bone to pick.

In support of its decision, the Appellate Division noted, “Courts have found discriminatory intent lacking where the decision-makers are over forty when the employment decision was made.”

I checked the cases upon which the court relied. And yes, the appellate court’s statement is true. But courts (and HR professionals) shouldn’t dismiss the possibility of discrimination on this basis. Here’s how another judge described it:

“Courts should not and do not presume that individuals will act a certain way based on their membership in a protected class….[If] any plaintiff, asked a court to presume discrimination based only on the fact that the plaintiff’s supervisor was not in the plaintiff’s protected class, [the defendant] would scream ‘bloody murder.’ And it would be right to do so. Arguments suggesting that people act in a certain way based on their membership in a protected class have no place in the judicial system. Attorneys should not make them.”

Instead, employers faced with claims of discrimination go back to the basics. Were expectations communicated clearly, work rules consistently applied, performance issues documented, and appropriate discipline given? If the answer is yes, that is the best defense to a discrimination claim.

“Doing What’s Right – Not Just What’s Legal”
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