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Overview of New Jersey Age-Based Employment Discrimination Claims

The litigation of an age discrimination claim under New Jersey’s Law Against Discrimination (LAD) involves a complex burden shifting process. This three-part burden shifting framework was created by the U.S. Supreme Court in McDonnell Douglas Corp v. Green and applied in New Jersey cases like Zive v. Stanley Roberts, Inc. Because understanding how to prove an age discrimination claim can be difficult, we have provided a general overview of the standards of proof that each side must meet in an age based discrimination case.

Age Discrimination Prima Facie Case

The initial evidentiary burden in a case where a party claims to be the victim of discriminatory treatment based on age is placed on the plaintiff, who is the person claiming to be the victim of discrimination. The plaintiff must present evidence to establish a prima facie case of age based discrimination under the McDonnell Douglas framework by establishing the following elements:

  • The plaintiff was a member of the protected class
  • The plaintiff was fired from a position for which he or she was qualified
  • The plaintiff was subject to an adverse employment decision
  • The disparity in age between the person hired and the plaintiff is sufficient to suggest age discrimination, or the termination occurred under circumstances sufficient to give rise to an inference of illegal discrimination

Although the plaintiff in an age discrimination case bears the initial burden, an overwhelming amount of evidence is not needed to meet the evidentiary burden at this stage. Rather, the U.S. Supreme Court has indicated that the burden is rather modest and easily made out at this stage, as indicated by Zive.

If the plaintiff establishes a prima facie case of age discrimination, then the burden shifts to the employer to provide admissible evidence of a legitimate non-discriminatory justification for the termination.

Once the employer has put forth a justification for the termination, the employee has the burden of establishing either that the justification is not credible or that the decision was motivated by discriminatory intent. Essentially, this amounts to showing that the explanations were a matter of pretext or that they were not the actual motivation behind the employer’s decision to replace the plaintiff with a younger employee.

One type of evidence frequently used by an employee is that the employer treated the plaintiff differently than other employees under similar circumstances. The employer may claim to have terminated an employee over 50 for receiving three write-ups, for example, while retaining employees under 35 who received the same number of write-ups.

While this overview provides a broad roadmap of the process of establishing an age discrimination claim in the workplace, it is necessarily simplified and omits significant nuance.

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Neil H. Deutsch

About Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for…

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Bruce L. Atkins
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About Bruce L. Atkins is regarded as one of New Jersey’s premier practitioners of employment and civil litigation. He has been selected to the New Jersey Super Lawyers prestigious list every year since 2005.  This honor, bestowed upon a recipient by the votes of his peers, is a powerful nod to the skill Mr. Atkins…

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Adam J. Kleinfeldt

About Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, P.C. in March of 2015.  He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters.  He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict…

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Diane Englander Peyser

About Diane Englander Peyser joined Deutsch Atkins & Kleinfeldt, P.C. in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins & Kleinfeldt, P.C., Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination,…

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Debra M. McGarvey

About Debra M. McGarvey joined Deutsch Atkins & Kleinfeldt, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA),…

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