Proving Age Discrimination Case In New Jersey
The New Jersey Law Against Discrimination provides, in pertinent part:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. for an employer, because of the . . . age, . . . of any individual, . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. . . .(N.J.S.A. 10:5-12(a)).
In Bergen Commercial Bank v. Sisler, 157 N.J. 188, 218, 723 A.2d 944 (1999), the Supreme Court found that in a reverse age discrimination suit, a plaintiff "must conform his or her proofs to a 'heightened reverse discrimination' formulation."
The Sisler court stated that a plaintiff in a reverse discrimination suit must show that "he or she was replaced with a candidate sufficiently older to permit an inference of age discrimination. Id. at 218, 723 A.2d 944.
The heightened formulation was used because plaintiff Sisler was not a member of a historically disadvantaged class. Ibid.
Once the employer provided sufficient nondiscriminatory reasons for plaintiff's termination and other evidence rebutting the presumption of discrimination the burden shifted back to plaintiff to prove that "the articulated reason 'was merely pretext to mask the discrimination' or was not the true motivating reason for the employment decision." Greenberg, supra, 310 N.J. Super. at 199, 708 A.2d 460 (quoting Kelly v. Bally's Grand, Inc., 285 N.J. Super. 422, 430, 667 A.2d 355 (App.Div.1995)).
To survive summary judgment, plaintiff is obligated to show sufficient evidence to support an inference that the employer did not act for its stated non-discriminatory reasons. Kelly, supra, 285 N.J. Super. at 432, 667 A.2d 355.