Age Discrimination: Exceptions to the Rules

It’s illegal under both federal and New Jersey state law for an employer to discriminate against any current or potential employee on the basis of that employee’s age, but there are significant differences between the federal Age Discrimination in Employment Act of 1967 (ADEA) and the New Jersey Law Against Discrimination (NJLAD). The ADEA and NJLAD each apply to different categories of employers and businesses and protect different groups of people.

Exceptions to Federal and NJ State Age Discrimination Protections

Under both federal and New Jersey law, an employer can specify age in a hiring notice or job description if age is a “bona fide occupational qualification” (BFOQ) for the job. A BFOQ means that an employee’s age is considered essential to the job or vital to some aspect of the business’ operation. One example of a legitimate, bona fide occupational qualification is furthering safety by implementing an age requirement for hiring (and a mandatory retirement age) for bus drivers and airline pilots. Another is when hiring for an artistic purpose, like a theatrical production or film; the First Amendment freedom of speech protection allows an artist to cast an actor of whatever age he or she desires. 

However, the Supreme Court has held that a jury may find unlawful discrimination when a plaintiff shows that the employer's BFOQ explanation for its adverse job decision is pretextual. So if an employer claims its older workers are being laid off not because of their age but because of their inability to consistently lift 50 pounds, but a plaintiff demonstrates that this requirement is completely unnecessary, a jury can find that the employer is lying to cover up its illegal, discriminatory motive.

What is not a legal BFOQ is “customer preference,” i.e., a business’ claim that its customers or clients prefer to deal with younger workers. Even if a client or customer makes the request, a business cannot choose to employ or assign workers based on age.

Furthermore, firing a worker for legitimate reasons is not prohibited just because a worker is older. If a worker has a documented pattern of disciplinary trouble or commits an offense that would result in termination regardless of age, he or she can be properly terminated.

For example, a night watchman who repeatedly falls asleep on the job can be disciplined or fired – even if he is falling asleep due to age-related health issues – because it’s a requirement of the job that he stay awake and alert. However, if an older worker is treated differently than a younger worker – for example, a night watchman who is 56 years old is fired the first time he falls asleep on duty, but another employee who is 24 is merely warned – he may have a case for age discrimination.

Does the Federal or State Law Apply?

Not all employers are covered by both federal and state age discrimination laws. The NJLAD covers private or state and local government employers, employment agencies, and labor unions. Employers of all sizes are covered. Regardless of where a company is based, all employees working within the state of New Jersey are covered by the NJLAD. (However, New Jersey residents employed outside the state or employees working outside the state for employers with headquarters in New Jersey are not protected by the NJLAD.^[1])

The ADEA, on the other hand, only applies to employers with at least 20 employees, employment agencies, labor organizations of 25 or more members, and federal, state, and local government agencies (although recovery may be limited against government agencies). The ADEA does not protect elected officials, independent contractors, or military personnel.

Victims of age discrimination in New Jersey can file employment-related claims with two primary agencies. The Equal Employment Opportunity Commission (EEOC) handles federal discrimination claims; the New Jersey Division of Civil Rights (DCR) typically handles discrimination claims at the state level under the NJLAD or other state law. New Jersey is recognized as a deferral state. Therefore, the federal EEOC may defer to the DCR in discrimination actions; if the employee has claims under both federal and state law, the EEOC may refer the claims to be investigated by the DCR (or preserved by the DCR for appropriate civil action).

Differences Between Federal and NJ Statutes

The NJLAD is notably different from the ADEA and anti-age-discrimination statutes in other states: it prohibits age discrimination against individuals who are at least 18 years old (not limited to those over 40) and specifically allows employers to refuse to hire or promote individuals who are under the age of 18 or over the age of 70. This is unusual on both ends of the spectrum, affording more protection to younger workers and less to workers of advanced age.

For example, a bartender is fired from a restaurant in Jersey City. Although she is only 36, she's significantly older than most of the rest of the wait staff and is replaced by a 24-year-old. Under the ADEA, she could not bring a discrimination claim because she is under the statutory age limit of 40. She may bringing a claim under the NJLAD, however, because she is within its applicable age range (18-70).

Employers who are subject to the ADEA, as well as the NJLAD, must follow the federal law’s more restrictive prohibitions on discrimination against older employees, even though the conduct may be allowed by the NJLAD. 

Therefore, a bookkeeper for a private, 10-person company who is forced into retirement on her 71st birthday may be unable to bring any claim for age discrimination because her company isn't covered by the ADEA, and she isn't within the age range protected by the NJLAD. If she worked for a 25-person company, however, she could likely bring a claim under the ADEA.

What to Do If You Are the Victim of Age Discrimination

If you believe you’ve been the victim of age discrimination, an attorney experienced in federal and New Jersey anti-discrimination law can help you determine whether you may have a claim, and if so, help you decide which venue would be best for you to pursue an action.

To schedule an appointment at the Basking Ridge, Oradell, or Newark, New Jersey, law offices of the Mark Law Firm, contact us by clicking below or call 973-440-2311, 908-626-1001, or 201-787-9406. Our experienced employment attorneys can help you determine whether you may have a claim for age discrimination or other employment law violations.

[1] See, for example, Brunner v. AlliedSignal Inc., 198 F.R.D. 612 (D.N.J. 2001); Buccilli v. Timby, Brown & Timby, 283 N.J. Super. 6 (App. Div. 1995).