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John Morelli New Jersey Lawyer
    Age Discrimination
John Morelli New Jersey Attorney


Injury Law Firm

        It is illegal to deny a privilege or base other unfair treatment upon the age of the person who is discriminated against. Congress has outlawed discrimination by employers against employees over the age of 40 with the Age Discrimination Employment Act (ADEA) (29 U.S.C. § 621). The ADEA does permit employers to set maximum age limits for employees if the employer can show that age is a bona fide occupational qualification and is reasonably necessary for the operation of the business.

The Equal Employment Opportunity Commission (EEOC) is charged with enforcing the ADEA. Complaints must first file a claim with the EEOC or their state employment or Human Rights Commission before pursuing a lawsuit. The EEOC attempts to resolve the dispute through voluntary compliance on the part of the employer, or other persuasive measures. If the EEOC decides to bring an action against the employer, the employee’s right to sue is extinguished. However, the employee need not exhaust his or her administrative remedies, which means wait for a final determination from the EEOC, before filing suit.

Since the ADEA’s passage, there has been a difference of opinion about what types of action constitute discrimination. There are two different approaches that a plaintiff may take when filing an age discrimination suit, “disparate treatment” and “disparate impact”. In disparate treatment cases, the plaintiff must prove that there was a specific intent to discriminate based on age. Disparate impact cases require the plaintiff to prove that an employment decision disproportionately affects members of a protected group (those over 40). In other words, in disparate impact cases, the discriminatory effect is what matters, even if the employer’s intent was not discriminatory. Courts do recognize in disparate impact cases the company may prove “business necessity”. For example, if a disproportionate number of employees affected by a layoff are over 40, the company will have to prove that those people were let go because their salaries were disproportionately high and that the company would face financial hardship if they were allowed to stay on.







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