Laws against discrimination exist in many different facets of life, including employment in New Jersey. Unfortunately, age discrimination in the workplace is still a common issue.

What is age discrimination?

Age discrimination is the act of treating someone unfairly because they are a certain age. This could be firing someone because they are too old, not hiring someone because they are too young or denying a promotion to an employee because of their age.

Age discrimination can also manifest as comments about someone’s age, such as calling them “old” or “young.” Ageist remarks like these can make the victim feel devalued and unwelcome in their workplace.

Age can play a role in promotions and raises at work. An older worker may not get a promotion because they are “too old,” or a younger employee might get a raise when everyone else gets denied one, which could contribute to age discrimination.

What is the law against age discrimination?

The Age Discrimination in Employment Act, or ADEA, is a federal law that prohibits employers from discriminating against employees aged 40 and older. Note that this law does not protect employees who are under the age of 40. The ADEA applies to employers with 20 or more employees, and it prohibits discrimination in hiring, firing, pay, job assignments, promotions and retirement plans.

What can you do if you experience age discrimination?

First, talk to your employer. Many employers have policies against age discrimination, and they may not be aware that someone is being treated unfairly because of their age. You can also file a complaint with the Equal Employment Opportunity Commission. The EEOC will investigate your claim and determine if there is enough evidence to file a lawsuit. If they decide to file a lawsuit, you may be able to receive damages for the discrimination you experienced.

These are just a few of the options available to someone who has experienced age discrimination in the workplace. If someone treats you unfairly because of your age, it’s important to know your rights and what you can do about it.

On October 5, 2021, Governor Murphy signed new legislation (Assembly Bill No. A681) that amends the New Jersey Law Against Discrimination (“LAD”) and expands the scope of age discrimination for older workers (in particular, workers over the age of 70) in the State of New Jersey. The amended law expands the protection of age discrimination in the following areas:

• The amended law repeals the requirement that governmental employees retire “upon the attainment of a certain age” if “a retirement age bears a manifest relationship to the employment in question . . .” As such, the amended law limits a governmental employer’s ability to set a mandatory retirement age.
• The amended law removes a section of the LAD stating that “that nothing herein contained shall be construed to bar an employer from refusing to accept for employment or promote any person over 70 years of age.” This clearly increases opportunities for workers over the age of 70 to obtain employment in the State of New Jersey.
• The amended law repeals a section of the LAD requiring tenured employees at public or private institutions of higher education to retire at the age of 70, which increases the likelihood that such employees will continue to remain employed and retire on their own volition.
• Lastly, the amended law adds remedies for employees who seek legal action due to forced retirement. Specifically, under the amended law, all remedies “shall be available” to such employees whereas prior to the amendment, employees were limited to seeking “reinstatement with back pay and interest.”

This is important legislation for older workers in the State of New Jersey. While it is unclear whether there will be a substantial increase in age discrimination litigation due to the amended law, the legislation does give employees over the age of 70 increased protection in the workplace. If you have any questions about age discrimination in the State of New Jersey, please do not hesitate to contact Curcio Mirzaian Sirot LLC.

* Frank A. Custode, Esq. is a Partner and Chair of the Employment Practice at Curcio Mirzaian Sirot LLC.

If you’re an older worker in New Jersey, you expect to be respected and maybe even treated by colleagues as a mentor. Unfortunately, in spite of age discrimination being illegal, it happens often in the workplace. If you believe you’re experiencing discrimination, you should look for these signs.

You’re socially segregated

Activities that take place off-hours should include everyone. If you and others who are over 40 find yourselves segregated from others, including your boss, it’s a good sign that it’s due to age discrimination. This is illegal and everyone should be able to participate.

You’re on the receiving end of certain comments

Certain comments directed at you may hint at age discrimination. If your employer mentions more energy, new blood or fresh faces, it’s telling. They might even say outright that older employees are stubborn and set in their ways. This is clear-cut discrimination and shouldn’t happen.

You’re passed up for promotions or projects

Everyone, regardless of age, should have the same opportunities in the workplace. However, if you’ve passed up for a promotion, special projects, or training, you should have your guard up. If you notice that younger workers are getting those opportunities while you’re excluded from them, you have a case to file a discrimination claim.

Being asked if you’re going to retire

Your supervisor asking you if you’re going to retire soon is another form of discrimination. It’s rude, inappropriate, and can throw you off-guard. Even if you are already 65, the legal retirement age, many people these days stay in the workforce past that age.

You’re laid off due to your age

If your workplace is suddenly laying off older employees, you might be next. It’s one of the more obvious signs of age discrimination. You could have a valid claim against your employer.

You don’t have to sit back and accept age discrimination in the workplace. It’s illegal and you have the right to fight back.

You’ve searched for a new job in New Jersey, have found a very promising prospect, and then everything goes south once you’ve had an interview face-to-face or on Zoom. Your prospective employer discovered that you’re deaf or have a significant level of hearing loss. You may have just faced employment discrimination because of your disability.

ADA violations

If you experience discrimination when applying for a job, it could be a violation of the Americans With Disabilities Act. You are considered qualified for a job if you can perform essential tasks connected with it. If you are qualified, the employer must provide you with reasonable accommodations, such as providing a sign language interpreter for meetings and similar situations.

The Equal Employment Opportunity Commission is responsible for dealing with employment discrimination complaints. You have 180 days from the date of the incident to file a complaint, which must be done before you file a lawsuit. Plaintiffs can file through the mail, online or by going to an EEOC office.

Remedying employment discrimination

The EEOC may ask you to take specific steps such as going through mediation to determine that your rights as a deaf person have been violated. In some instances, they may also ask that you be placed in the job for which you applied. Other remedies include receiving compensatory damages or punitive damages for outright employment discrimination.

However, the EEOC isn’t always able to settle cases of employment discrimination with one of the aforementioned methods. In such cases, plaintiffs may have to resort to a lawsuit to settle their claims.

If you believe that you have been denied a job or a promotion because you are deaf or hard of hearing, working with an attorney experienced in employment law may help resolve the situation if the EEOC cannot.

If your child has reached the teenage years, you may already feel as though you are losing control of his or her life. This is legally true once your child reaches the age of 18 as this is the age the state considers your child to be an adult with the legal right to govern his or her own life.

Up until your child reaches age 18, you are entitled to access your child’s medical records and to make decisions regarding the course of his/her treatment. And, your child’s financial affairs are your financial affairs. This changes once your child turns 18 because your now-adult child is legally entitled to his privacy and you no longer have the same level of access to or authority over his financial, educational or medical information. As long as all is well, this can be fine. However, it’s important to plan for the unexpected and for your child to set up an estate plan that at least includes the following three crucial components:

1. Health Care Proxy with HIPAA Release

Under the Health Insurance Portability and Accountability Act, or HIPAA, once your child turns 18, the child’s health records are between the child and his or her health care provider. The HIPAA laws prevent you from even getting medical updates in the event your child is unable to communicate his or her wishes to have you involved. Without a HIPAA release, you may have many obstacles before receiving critically needed information, including whether your adult child has even been admitted to a particular medical facility.

Should your child suffer a medical crisis resulting in the child’s inability to communicate, doctors and other medical professionals may refuse to speak with you or allow you to make medical decisions for your child. You may be forced to hire an attorney to petition to have you appointed as your child’s legal guardian by a court. At this time of crisis, your primary concern is to ensure your child is taken care of and you do not need the additional burden of court proceedings and associated legal costs. A health care proxy with a HIPAA release would enable your child to designate you or another trusted person to make medical decisions in the event your child is unable to convey his or her wishes.

2. Durable Power of Attorney

Like medical information, your 18-year-old child’s finances are also private. If your child becomes incapacitated, without a durable power of attorney you cannot access the child’s bank accounts or credit cards to make sure bills are being paid. If you needed to access financial accounts in order to manage or resolve any problem, you may be forced to seek the court’s appointment as conservator of your child.

Absent a crisis, a power of attorney can also be helpful in issues that may arise when your child is away at college or traveling. For example, if your son is traveling and an issue comes up where he cannot access his accounts, a durable power of attorney would give you or another trusted person the authority to manage the issue. An alternative may be to encourage your child to consider a joint account with you. However, this is rarely recommended because of the unintended consequences for taxes, financial aid applications, creditor issues, etc.

3. Will

Your child owns any funds given to him or her as a minor or that he or she may have earned. In the catastrophic event that your child predeceases you, these assets may have to be probated and will pass to your child’s heirs at law, which in most states would be the parents. If you have created an estate plan that reduces your estate for estate tax or asset protections purposes, the receipt of those assets could frustrate your estate planning goals. In addition, your child may wish to leave some tangible property and financial assets to other family members or to charity.

While a will may be less important than the health care proxy, HIPAA release or durable power of attorney, ensuring that your child has all three components of an estate plan can prevent you, as a parent, from having to go to court to obtain legal authority to make time-sensitive medical or financial decisions for your child.

If you have a child (or grandchild) who is approaching adulthood, talk to your elder law attorney about having the child execute these three crucial documents.

When most people hear the term “millennial,” they automatically envision an entitled young person who possesses little to no real-world skills. However, the oldest millennials will turn 40 this year, which means they are actually reaching the age where they may begin to experience age discrimination. Millennials in New Jersey who experience age discrimination should educate themselves on their rights.

Gender roles

40-year-old men are not likely to face discrimination, but it becomes a scary reality for their female counterparts. Gender discrimination is every bit as dangerous as age discrimination, and it becomes a much harsher reality for females in the workforce. This disparity between men and women in the workforce grows even more by the time job applicants turn 50 years old, according to a recently released study.

The recession’s impact on discrimination

A generational economic crisis has an even more severe impact on age discrimination in the workplace. When the job market begins to dry up, those in a position to hire new employees can discriminate even more blatantly than before. The current economic status in the United States certainly lends itself to discrimination for job applicants entering their 40s.

Assumptions and discrimination

It is possible for employers to act in a discriminatory manager without any malice. Many employers may assume that a woman in her 40s has school-aged children and will need time to provide care for them. While their concerns may come from a good place, if these assumptions influence the hiring process, discrimination is a concern.

Anyone who believes they have been the victim of discrimination in the workplace or from a potential employer may benefit from contacting an attorney who is well-versed in employment law. This attorney can review the claims their client makes and the hiring practices of the company in question to help their client decide on taking their case to court.

Discriminating against restaurant employees is illegal in the state of New Jersey and throughout the United States. In December 2020, multiple Olive Garden employees filed a lawsuit against the company, alleging that it demonstrated discrimination based on race, gender and sexual orientation. Olive Garden has denied the allegations.

Employees claimed they experienced a pattern of discrimination

Five Black employees who worked at an Olive Garden in Times Square reported seeing a similar pattern of discrimination. In the lawsuit, they claimed that their supervisors denied them the chance to take breaks and deliberately assigned them the undesirable tables. Since Olive Garden doesn’t pay minimum wage, this affected their ability to collect tips and make a living wage.

In addition to racial discrimination, the employees alleged that they were also treated badly due to their gender or sexual orientation. The lawsuit claims non-Black and non-LGBT employees were given better shifts and hours. This also affected their ability to work, collect tips and make enough money to support themselves.

In a statement, Olive Garden denied the allegations. A spokesperson for the restaurant claimed that Olive Garden pays its employees a decent salary and gives everyone opportunities for advancement. The representative also claimed that Olive Garden has a culture of diversity and fairness that benefits everyone on its team.

Are you a victim of workplace discrimination?

If you’ve been a victim of discrimination, you may feel pressured to ignore it or play it off as a joke. Your supervisors might even encourage you to drop the issue. However, discrimination creates a hostile work environment that can make it difficult for you to sustain a living wage, especially if half your income comes from tips. An attorney may help you initiate a discrimination lawsuit against your employer.

Workers in New Jersey and elsewhere who are 40 or older are protected by legislation such as the Age Discrimination in Employment Act (ADEA). The law applies to both employees and those who are applying for positions with a company. Furthermore, employers are not permitted to engage in any practice that may have a disparate impact on an older worker even if it is meant to apply to everyone equally.

What could constitute age discrimination?

On October 20, the 9th Circuit ruled in favor of an Abbott Laboratories employee who claimed that executives had been instructed to manage out older workers. According to one such executive, the company attempted to meet that goal by creating unrealistic expectations for those individuals. Furthermore, that person said that they were responsible for doctoring performance evaluations to justify getting rid of these employees. The court ruled that a trial court should take a second look at these statements and other facts that may enable the plaintiff to obtain a favorable outcome in the case.

Ageism is relatively common in the workplace

According to a study conducted by Hiscox, an insurance company, more than 20% of respondents over the age of 40 said that they had faced age discrimination in the workplace. Research has indicated that older workers tend to be at a higher risk of being terminated because of outdated assumptions about their value to the companies that they work for.

If you feel that you have been the victim of discrimination at your job, it may be worth taking legal action against your employer. An attorney may help you gather and organize evidence that can be used during settlement talks or at trial. If your claim is successful, you may receive a financial award or get your job back.

Ideally, discrimination of any kind in the workplace would be a thing of the past. However, since we don’t live in an ideal world, New Jersey residents who are working later in life may find themselves the target of age discrimination. There are several signs you can look for that will indicate you’re a victim of this disturbing practice.

Assumptions

As technology has become more and more prevalent in every industry, so too has the largely false assumption that older adults can’t or don’t want to understand new trends. AARP reports that a suit was brought against a large IT company that fired their longtime leader because they believed it was a “bad look” to have an older person at the head of a tech company. These assumptions are certainly a sign of discriminatory practices.

Segregation in social settings

It is not uncommon for bosses to spend time with employees outside of the workplace. It is also fair to assume that those events can lead to favoritism in the workplace. If only people below a certain age are involved in these activities outside of work, it may be due to a culture of ageism.

Read between the lines

There are many adjectives that are used to discuss younger employees. Terms such as “new blood,” “fresh-faced” or “innovative” are often the sign of a company that discredits older employees. While these may be true of the younger workers, it can also be a sign of age discrimination.

An employee of any age who believes they have been a target of discrimination in the workplace should contact an attorney who is knowledgeable of local and federal labor laws. This attorney could gather the necessary evidence and potentially help the client recoup damages.

New Jersey is an at-will employment state, meaning that the relationship between employer and employee can usually be terminated at any time by either party. There are several circumstances, though, under which an employee might have the right to sue for wrongful termination in New Jersey. These include discrimination, retaliation, public policy and breach of contract.

The majority of wrongful termination lawsuits are based on a theory of discrimination in employment. Companies are prohibited from making employment decisions based on the race, sex, color, age, disability, religious practice or pregnancy status of employees or potential employees. Employers in New Jersey also may not fire people for taking family medical leave or due to disabilities that the employer refuses to accommodate.

Employers are also prohibited from firing employees in retaliation for certain actions. For example, a person may not be fired for pointing out unsanitary or unsafe working conditions. They may not be fired for reporting that they’ve not received overtime pay or for refusing to lie for the company.

Additionally, New Jersey has a public policy exception for at-will employment. In operation, this means employers may not fire workers for reasons that the public would not see as reasonable. Under the public policy exception, employers who file for workers compensation benefits may not be fired for doing so.

Employees may also be able to pursue damages for wrongful termination based on a breach of contract. An attorney who has experience in employment law may be able to help interested parties determine if they have claims for monetary damages or other relief under New Jersey law. An attorney may examine the facts of the case for actionable claims, attempt to negotiate settlement with at-fault parties, draft and file necessary legal documents or represent the client during official proceedings in civil court.