01 Jul If I get laid off, can I file an age and gender discrimination suit?

Q. I think I’m going to be laid off from my job. I’m 61 and a woman, and most employees here are men and younger than me. How can I tell if I have grounds for an age or gender discrimination suit? I have been taking notes about times I’m not included in strategy sessions and when people just talk down to me. I have records for about two years.
— Still working

A. We’re sorry to hear about your job situation.

Assuming you are employed in New Jersey, you’re probably trying to determine if you can file suit under the New Jersey Law Against Discrimination, or federal anti-discrimination statutes such as Title VII, or the Age Discrimination in Employment Act, each of which share similar standards for evaluation, said Alex Lee, an attorney with Einhorn Harris in Denville.

“In evaluating whether the employee has grounds for an age or gender discrimination suit under the theory that she has received disparate treatment compared to other similarly situated younger male employees, the employee will need to determine whether she has actually been subject to adverse treatment by her employer due to her age and gender, or whether such action was taken because of other non-discriminatory reasons,” Lee said.

He said in reaching that determination, courts first require that an employee demonstrate certain factors to establish an initial basis for the lawsuit.

Here, the employee has established that she belongs to protected classes that qualify her for legal protections due to her age and her gender, he said. From there, the employee will also need to establish that she has suffered a concrete adverse employment action that will give a basis for the suit.

“This could come in the form of the termination she suspects is impending, but could also be met through showing that she suffered other forms of treatment, like a prior failure to promote, or other adverse incidents depending on the factual circumstances and their effects on her employment,” Lee said.

Another factor to be analyzed is whether the employee was performing her job duties in a manner that met her employer’s legitimate expectations at the time she alleges the discrimination occurred, he said. From there on, the factual circumstances including the employer’s stated rationale for its actions, are examined to determine whether the alleged treatment was motivated by discriminatory reasons. The specific facts that are examined will be based upon the circumstances of employment that are unique to each case, he said.

Lee said while the clearest cases involve circumstances where an employer or manager makes overt statements regarding age or gender that link back to the adverse employment treatment suffered by the employee, it is more common to see cases where such clear cut proof is absent.

“Discriminatory behavior is often subtle,” Lee said. “In many cases, an employer alleged to have engaged in discrimination will respond by referring to other non-discriminatory reasons as the actual reason for the adverse employment action.”

In the absence of clear proof, such cases are often decided on the ability of each side to prove or disprove the existence of discriminatory intent through circumstantial evidence, he said.

“As for the employee here, if the employer is not including the employee in strategy sessions, and other employees are talking down to the employee due to her age or gender, a record of such incidents will certainly be helpful to establish that intent, particularly if such comments make reference to the employee’s age or gender,” Lee said.

Good luck.

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This story was originally published on July 1, 2019.

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