New Jersey Employment Attorneys Blog

Your Right To A Sexual Harassment Free Workplace

Published on: November 26, 2017 | by Mashel Law, L.L.C.

Under the federal Title VII of the Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination (LAD) workers are protected from sexual harassment in the workplace. There are two kinds of sexual harassment; (1) quid pro quo –agreement to perform sexual favors to receive a benefit (promotion, raise, continued employment, etc.); or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances.

Showing harassment through a hostile work environment requires a plaintiff to show: (1) objectively, a reasonable person would find such an environment hostile or abusive; (2) subjectively, the plaintiff perceives the environment as hostile or abusive; (3) the hostile environment is so severe or pervasive that someone can’t function or perform work properly; and (4) the hostile work environment was sexually motivated, in other words because of a characteristic protected by Title VII and LAD. There are two ways with which a workplace environment can be considered so hostile that someone can’t function or perform work properly; (1) a single incident occurred that was extraordinarily severe/egregious; or (2) a series of incidents was sufficiently continuous and concerning to have altered the conditions of the working environment.

If an employer has workplace policies in place to prevent and rectify harassment and the employee must take advantage of those procedures before bringing a harassment claim. This is known or referred to as the “Faragher-Ellerth defense”. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Such procedures can include having a Human Resources department which accepts and reviews harassment complaints, and if concluding that harassment took place, acts appropriately against those perpetrating the harassment. However, if an employee does complain about harassment, and management, concluding harassment took place, does not move to rectify, and prevent future harassment, then the employer can be held liable for the harassment which took place.

Temp Agency Workers in the Third Circuit and New Jersey May Sue Their Immediate Employers For Workplace Discrimination

Published on: September 28, 2017 | by Mashel Law, L.L.C.

New Jersey is one of the states comprising the United States Court of Appeals for the Third Circuit. In considering the scope of protections afforded workers by Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000 et seq. (“Title VII”), our Third Circuit defines an “employee” as including those workers placed by temporary staffing agencies. Faush v. Tuesday Morning, Inc., 808 F.3d 208, 213 (3d Cir. 2015). The Third Circuit arrived at this conclusion by applying the so-called “Darden Test” set down by our United States Supreme Court in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992). Under the Darden Test, a court looks at the following 12 steps to determine whether a worker qualifies as an “employee” for Title VII protection purposes: (1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party’s discretion over when and how long to work; (7) the method of payment; (8) the hired party’s role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) and the tax treatment of the hired party. However, in the Third Circuit, courts focus primarily on which entity paid the employees’ salaries, hired and fired them, and had control over their daily employment activities. Faush , supra.,808 F.3d 208 at 214.

In Faush, the Third Circuit concluded that a temporary agency worker who was “leased” to a store may be considered the store’s “employee” under Title VII, and therefore, can sue the store for discrimination. There, Tuesday Morning Inc. (“Tuesday Morning”) had leased Faush and other temporary workers from a temporary staffing agency to perform basic labor tasks for the store such as stocking shelves. Faush alleged Tuesday Morning subjected him and other black temporary workers to racial discrimination. In reversing the grant of summary judgment to Tuesday Morning by the District Court below, the Third Circuit applied the Darden Test and found that Tuesday Morning controlled and supervised where, when and how the temporary workers worked. Further, while Tuesday Morning did not directly pay the temporary workers, the store did pay the temps based on the hours they worked and compensated them for overtime. Therefore, the Third Circuit found the method of payment used by Tuesday Morning was indistinguishable from directly paying them as permanent W-2 employees. Consequently, Faush was able to sue Tuesday Morning for employment discrimination under Title VII.

Because New Jersey’s Law Against Discrimination (the “LAD”) is supposed to be “liberally construed”, Battaglia v. UPS, INC., 214 N.J. 518, 546 (2013), and given New Jersey Courts will often look to the federal courts and their construction of federal laws for guidance in construing the LAD , Bergen Commercial Bank v. Sisler, 157 N.J. 188, 200 (1999) (finding that to the extent federal standards are useful and fair, they will be applied to LAD in the interest of achieving a degree of uniformity in the discrimination laws), it may be fairly predicted that our state courts would likely follow the Third Circuit and conclude that temp workers are to be considered employees under LAD, and permit temp workers to sue employers under LAD where workplace discrimination can be proved.

Third Circuit Rules Foreman Who Controlled Whether An Employee Had Work Constitutes A “Supervisor” For Purposes of Imputing Liability to the Employer

Published on: September 13, 2017 | by Mashel Law, L.L.C.

Under Title VII of the Civil Rights Act of 1964 and under New Jersey’s Law Against Discrimination, it is unlawful for an employer to discriminate against an employee with respect to his/her compensation, terms, conditions, or privileges of employment because of the employee’s sex or gender. In such a circumstance, an employer is liable for a hostile work environment created by one or more of its supervisors if the employee suffering the discrimination establishes that: 1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of a respondeat superior relationship between the harasser and the victim employee. “Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 619 (1993).

To establish the existence of respondeat superior liability – namely, employer liability for a supervisor’s unlawful actions or inactions – a victimized employee needs to show that the supervisor acted as the employer’s agent. Usually, to be considered an employer’s agent the worker needed to have acted within the scope of employment. See Restatement (Second) of Agency § 219(2)(d) (Am. Law Inst. 1958). However, even if the supervisor acts outside the scope of employment, the employer can still be found liable. This is because under § 219(2)(d) of the Second Restatement, an employer may be liable when employees act outside the scope of their employment if they were “aided in accomplishing the tort by the existence of the agency relation.” Stated differently, even acting outside the scope of their employment, if the employee used their position as the agent of the employer to inflict harm against a subordinate the employer can be liable.

Recently the Third Circuit in, Moody v. Atl. City Bd. of Educ., No. 16-4373, 2017 U.S. App. LEXIS 17191, at *1 (3d Cir. Sep. 6, 2017), reversed and remanded to trial a district court’s dismissal of a complaint brought by a temporary fill-in employee against a public entity employer alleging her or foreman sexually harassed her. Specifically, a custodian foreman named Marshall worked for the Atlantic City Board of Education (“ACBOE”) and oversaw scheduling the substitute custodian hours, and demanded sexual favors from Plaintiff Moody, a temporary school custodian, in exchange for favorable work schedules. When Moody refused Marshall’s demands, Marshall stopped scheduling Moody for work. Initially, the district court dismissed liability against the ACBOE finding there was no respondeat superior relationship because Marshall was not Moody’s supervisor, and therefore, the ACBOE was not liable for what Marshall had done. However, the Third Circuit reversed, concluding Marshall was in fact Moody’s supervisor because Marshall was the one who controlled whether Moody would work or not. Since Moody was a temp/fill-in worker Marshall controlled whether Moody worked at all – not just (what an average foreman controls) deciding which hours and days she worked – this gave Marshall “supervisor” status. The court then held “[w]hen a supervisor takes a tangible employment action against a subordinate, the employer is vicariously liable because the injury could not have been inflicted absent the agency relation.” Since Marshall used his position as foreman under the ACBOE to demand sexual favors in return for providing Moody work, the ACBOE was found to be liable for Marshall’s actions.

DENYING AN EMPLOYEE’S LATERAL TRANSFER REQUEST CAN BE DISCRIMINATORY

Published on: September 6, 2017 | by Mashel Law, L.L.C.

To deny an employee a transfer to a lateral employment position because of his or her protected class characteristic, e.g., race/color, religion/creed, sex/gender, national origin/ancestry, age, disability, or sexual orientation, is a violation of The Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et, seq. (1964) (“Title VII”) and the New Jersey Law Against Discrimination (the “NJLAD”). An employee demonstrating that they were the victim of discrimination needs to establish the existence of three elements: (1) that they are part of a protected category (race, sex, religion, color, or national origin); (2) they suffered an adverse action; and (3) causality, that is, they suffered adverse action from their employer because of their protected class characteristic(s). Once these three elements are established, discrimination can be found even when an employer merely withholds a benefit and the harm is not necessarily concrete or directly harmful to the employee. For example, if an employer does not give an (minority, religious, etc.) employee a particular promotion/benefit, which had otherwise been given to other, similarly placed (non-protected category) employees, it can be discrimination. This may apply even when the employer is not obligated to give those benefits/opportunities to the employees and the protected employee is not necessarily in a worse position than they were prior to being denied the requested benefit.

Recently, the D.C. Circuit in Ortiz-Diaz v. United States HUD, No. 15-5008, 2016 U.S. App. LEXIS 23805, at *1 (D.C. Cir. Aug. 2, 2016), limited prior precedent, reversed summary judgment, and remanded back to trial determination on the issue of whether a supervisor’s denial of a Hispanic employee’s lateral transfer request was discrimination under Title VII. Plaintiff, Samuel Ortiz-Diaz, worked for the Washington, D.C. Office of Inspector General and applied for a transfer to the Albany, New York, or Hartford offices. Ortiz-Diaz wanted to work at the Albany or Hartford offices to obtain a new “good” supervisor and remove himself from the control of his current supervisor who Ortiz-Diaz perceived as racially and ethnically biased. Ortiz-Diaz was even willing to take a pay cut just to get away from his biased boss, and thereby improve his career prospects, but his supervisor denied Ortiz-Diaz’s transfer request without explanation. Ortiz-Diaz sued claiming the denial of his lateral transfer was an act of discrimination. In agreeing that Ortiz-Diaz deserved to have his claims decided by a jury at trial, the D.C. Circuit Court distanced itself from prior court precedent where it was found that denial of a lateral transfer is not discrimination. In doing so, the D.C. Circuit Court concluded that since Ortiz-Diaz was denied the opportunity to advance his career by a supervisor who he perceived discriminated against him because of Ortiz-Diaz’s Hispanic heritage, his Title VII claim of discrimination was deemed legitimate and deserving of a jury trial.

The Ortiz-Diaz decision demonstrates how some federal courts continue to expand the protection of federal employment discrimination laws. Our courts in New Jersey often look to federal law as a key source of interpretive authority when assessing allegations of unlawful discrimination. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990). Given the liberality typically accorded the interpretation and application of the NJLAD, it may be fairly predicted that our state courts would likely follow the D.C. Circuit Court by prohibiting discriminatory employment practices which take the form of denying an employee a lateral transfer.

MASHEL LAW FILES NATIONWIDE CLASS ACTION LAWSUIT AGAINST LYFT, INC.

Published on: August 25, 2017 | by Mashel Law, L.L.C.

Mashel Law, L.L.C. recently filed a class action lawsuit in the United States District Court of New Jersey against Lyft, Inc. (Lyft) on behalf of current and former Lyft drivers who entered contracts with Lyft to receive a portion of the fare Lyft charges customers, that is, the fare charged the rider less Lyft’s applicable commission fee, and any applicable charges such as service fees, cancellation fees, damage fees, tolls, surcharges, and taxes, but who did not receive the contracted driver’s fee, and who opted out of arbitration. Lyft is a “ridesharing” business that originated in San Francisco, California in 2012, and whose chief competitor is Uber. Lyft operates in at least 33 other states in the United States.

Under this straightforward common law breach of contract action, the proposed class consists of all persons nationwide who entered contracts with Lyft to provide transportation services to customers (riders) of Lyft in exchange for a portion of the fare Lyft charges riders, to wit, the fare charged the rider (plus tips if applicable) less applicable charges such as service fees, cancellation fees, damage fees, tolls, surcharges, taxes, and who opted out of arbitration. The complaint also asserts common law claims of breach of the implied covenant of good faith and fair dealing, fraud, and unjust enrichment.

A class action lawsuit is appropriate when large numbers of similarly situated people have suffered same or similar injuries by the acts or omissions of a wrongdoer, typically a large corporation. Under the Federal Rules of Civil Procedure, a class may be certified if the requirements of Rule 23 are met, including: (1) numerosity; (2) commonality of law or fact; (3) typicality between the class claims and those of the named parties; and (4) adequacy of representation by the named parties and class counsel. Fed. R. Civ. P. 23(a). “[T]he proposed class must also satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011). A party seeking certification pursuant to Rule 23(b)(3), must show that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).

Employer’s Cannot Avoid Liability under New Jersey’s Disability Discrimination Laws by Arbitrarily Dictating What Constitutes An Essential Job Function

Published on: August 21, 2017 | by Mashel Law, L.L.C.

Under the federal American with Disabilities Act (“ADA”), and the New Jersey Law Against Discrimination (“LAD”), a disabled employee is entitled to be reasonably accommodated by their employer so long as to do so does not create an undue hardship for the employer or coworkers. However, for an employee to be entitled to a reasonable accommodation for a disability, the ADA and LAD requires that the disabled employee can perform the essential functions of their job with or without an accommodation. Put differently, an employer is not required to accommodate an employee who cannot perform his or her essential job functions even with an accommodation. Hennessey v. Winslow Township, 368 N.J. Super. 443, 452 (App. Div. 2004), aff’d, 183 N.J. 593 (2005).

What constitutes an “essential function” requires a very fact specific determination. To do so, the U.S. Equal Employment Commission suggests the following factors be considered: (1) the employer’s job descriptions; (2) whether the position exists to perform that function specifically; (3) the experience of employees who actually hold that position; (4) the time spent performing the function; (5) the consequences of not performing the function; (6) whether other employees are available to perform the function, and; (7) the degree of expertise or skill required to perform the function. However,when looking at the job description factor, the New Jersey Supreme Court in Grande v. Saint Clare’s Health Sys., Nos. A-67, 076606, 2017 N.J. LEXIS 746, at *1 (decided July 12, 2017) recently reaffirmed that an employer cannot arbitrarily define which requirements are “essential” job functions.

Maryanne Grande (“Grande”) was a Registered Nurse who suffered repeated injuries while working at Saint Clare’s causing damage to her shoulders and neck. Following her last medical leave, Grande was cleared by her doctor to return to full-duty. However, before permitting her to do so, Saint Clare’s required Grande to undergo and pass a functional capacity evaluation (an FCE). The FCE concluded that Grande was fit to perform medium category work (occasional lift and work up to 50 lbs.) with certain job alterations to avoid prolonged or repetitive neck movements, and required assistance when performing patient transfers or guarding patients or handling loads greater than 50 pounds. Thereafter, Saint Clare’s informed Grande that they were terminating her employment because they felt she had limitations which prevented her from safely doing her job.

Federal Court Holds That An Employee May Use Medical Leave Time Off For Vacation

Published on: August 3, 2017 | by Mashel Law, L.L.C.

The federal Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654 and New Jersey Family Leave Act (“NJFLA”) N.J.S.A. 34:11B-1 et. seq. permits employees to take 12 weeks of protected unpaid leave when they or their immediate family suffer a serious medical condition or for a new born child. This allows the employee to cope and recuperate from such circumstances. Relatedly, an employer cannot punish an employee for taking FMLA or NJFLA leave. Indeed, the United States Court of Appeals for the 11^th Circuit recently ruled that an employee can use his medical leave time off as vacation time, and cannot be fired for doing so, so long as taking such time off does not directly violate an express company policy. In Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261 (11^thCir. 2017), the 11^th Circuit remanded to the district court to decide whether an employer had subjected his employee to unlawful retaliation by firing him when he did not use his time off within the “spirit” of medical leave – to rehabilitate and recover – and instead vacationed.

In Jones, the employer, Accentia, granted plaintiff Rodney Jones (“Jones”), their Activities Director, 12 weeks of FMLA leave so that he could undergo rotator cuff surgery and fully recover. However, when Jones was scheduled to return, his doctor reported that Jones could not resume physical activity until February 1, 2015. Despite his doctor’s recommendations and his own physical limitations, Jones still wished to return to his job at the end of his FMLA leave. Jones understood his doctor’s report to simply mean that he needed to continue physical therapy, not that he was prohibited from working entirely. Therefore, he asked his supervisor to allow him to return to work on light duty. His requested was denied. In fact, Jones was told he would not be permitted to return to work unless he underwent and passed a fitness-for-duty exam. Because his supervisor was adamant that Jones could not return to work on light duty, Jones did not ask his doctor for a light-duty certification. Jones instead requested additional time off and was granted another 30 days of non-FMLA medical leave to complete his physical therapy.

During the additional leave time, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida where he spent time walking around and taking pictures of the park’s Christmas decorations. Jones also visited his family in the Caribbean for three days. He posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean. When Jones returned to work, his supervisor confronted him with the vacation photos and informed him that “corporate” believed, based on these Facebook posts, Jones had been well enough to return to work without additional leave. Hence, Jones was suspended, and then his employment terminated following an investigation by the company.

NEW JERSEY’S WHISTLEBLOWING LAW IS EXTENDED TO PROTECT EMPLOYEES WHO REFUSE TO VIOLATE THEIR PROFESSIONAL CODES OF ETHICS

Published on: July 27, 2017 | by Mashel Law, L.L.C.

Many professions require a person to be licensed before they can work in their chosen field such as medicine, nursing, law, dentistry, teaching, accounting, pharmacy, psychology, engineering, and architecture, to name a few. Many, if not all, of these professions require the practitioner to adhere to a professional code of ethics or code of responsibility. Recently, in a case entitled Steven Trzaska v. L’Oreal USA, Inc., 2017 U.S. App. LEXIS 13381 (decided July 25, 2017), the United States Court of Appeals for the Third Circuit concluded that an employer who subjects an employee who is a licensed professional to workplace retaliation for refusing to violate a code of professional conduct violates New Jersey’s whistleblowing law, i.e., New Jersey’s Conscientious Employee Protection Act (CEPA).

Steven Trzaska worked as a supervising patent attorney for L’Oréal USA, Inc. (L’Oréal). His team’s job was in part to file patent applications with the United States Patent and Trademark Office (USPTO). The patent team he was assigned had to satisfy an annual 40 patent application filing quota. Management officials at L’Oréal told Trzaska and his team members that if they failed to meet the quota, “there would be consequences which would negatively impact their careers and/or continued employment.” Notwithstanding management’s threat, the patent team did not believe it was able to meet the mandatory quota without filing frivolous patent applications.As a licensed attorney required to follow professional rules of conduct and the rules of the USPTO, Mr. Trzaska made it known to L’Oréalmanagementthat neither he nor his team would file patent applications they in good faith believed were not patentable. This meant the patent quota was not attainable. After Mr. Trzaska’s views become known to L’Oréal management, they presented him with two severance packages requiring him to leave the company. When Mr. Trzaska refused to accept these severance offers, he was fired. Thereafter, Mr. Trzaska filed a lawsuit against L’Oreal alleging he was fired in violation of CEPA. The United States District Court dismissed Mr. Trzaska’s lawsuit finding that he did not engage in the conduct protected under CEPA. Mr. Trzaska appealed the dismissal of his case to the Third Court.

CEPA protects employees who blow the whistle by, among others, disclosing to a supervisor “an activity, policy or practice of the employer . . . that the employee reasonably believes . . . is in violation of a law, or a rule or regulation promulgated pursuant to law,” N.J.S.A. 34:19-3(a)(1), or by objecting to or refusing to participate “in any activity, policy or practice which the employee reasonably believes . . . is in violation of a law . . . .,” or by objecting to or refusing to participate in any activity, policy or practice which “is incompatible with a clear mandate of public policy concerning the public health, safety or welfare . . . .” N.J.S.A. 34:19-3(c)(1) and (3). A plaintiff who pursues a CEPA claim need not show that his or her employer or another employee actually violated the law or a clear mandate of public policy. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). Instead, the plaintiff simply must show that he “reasonably believes” that to be the case. Id. This is because the goal of CEPA, is “not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare.” Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998).

THE WORKERS COMPENSATION BAR MAY BE PIERCED WHEN THE EMPLOYEE’S WORK INJURY RESULTS FROM THE EMPLOYER’S INTENTIONAL CONDUCT

Published on: July 21, 2017 | by Mashel Law, L.L.C.

It can generally be said that before you can recover money for an injury someone else needs to be found at fault for causing the injury. However, when you suffer an injury at work, the New Jersey Workers’ Compensation Act N.J.S.A. 34:15-36, requires employers to “insure” workers, regardless of fault, by providing eligible employees with authorized medical treatment, temporary disability payments, and permanent partial disability payments for job-related injuries or illnesses. In exchange for these non-fault related benefits, employees are subject to a workers compensation bar preventing them from being able to sue their employer in court for economic loss and “pain and suffering” damages caused by work related injuries. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985). However, if an employer intentionally causes an employee’s injury, then the employee may be able to their employer in court for all common law personal injury damages. See N.J.S.A. 34:15-8. (Finding that “a person shall not be liable . . . except for intentional wrong.”)

In Laidlow v. Hariton Machinery Co. Inc., 170 N.J. 602 (2002), the New Jersey Supreme Court explained that certain circumstances can exist which would result in an injury being deemed intentionally caused even though the employer did not directly intend to harm the employee. Id. Laidlow laid down a two-pronged test where the employer is held liable as if it intended the injury to occur. Id. at 617. First, based on the circumstances there must be a substantial certainty that injury will occur, and second, the circumstances resulting in this injury cannot be standard industry practice. Id.

The burden to demonstrate a “Laidlow claim” can be a difficult one to achieve given the need of the employee to show that the circumstances surrounding the injury were beyond the everyday risks of the job, or that performing the job in the manner required by the employer would almost certainly result in injury. For example, in Van Dunk v. Reckson Associates Realty Corp., et al., 2012 N.J. LEXIS 678 (decided June 26, 2012) and recently in Madkiff v. Frazier-Simplex, Inc., No. A-1328-15T1, 2017 N.J. Super. Unpub. LEXIS 419, at *1 (App. Div., decided Feb. 23, 2017) the courts found that even though the respective supervisors of these plaintiffs knowingly allowed the employees to place themselves in a potentially harmful situation, the workers compensation bar could not be overcome because it was not proven that it was virtually certain an injury would occur to the plaintiffs under the circumstances presented.

THE ADEA AND NJLAD MAY AFFORD PROTECTION TO PROSPECTIVE EMPLOYEES FROM AGE BIASED RECRUITMENT PRACTICES

Published on: July 6, 2017 | by Mashel Law, L.L.C.

The federal Age Discrimination in Employment Act of 1967 (“ADEA”) and the New Jersey Law Against Discrimination (“NJLAD”) prohibit employers from discriminating against people because of their age. This includes a list of forbidden practices such as considering age when hiring and firing, compensation, assignment, transfer, promotion, use of company facilities, training, fringe benefits, pay, retirement plans, and disability leave, to name a few. While generally an employer cannot directly deny someone an opportunity to apply for a job because of their age – under the ADEA someone age 40 or over & under the NJLAD ages 18-70 (w/some exceptions) – it is currently unclear whether recruitment practices which discriminate against older applicants and deny them an equal opportunity to apply for jobs which they are well qualified are prohibited by the ADEA and the NJLAD.

The ADEA protections can be understood in two ways: Either, only “employees” are protected and anyone who is not a current employee does not have ADEA protection; or, “any individual” who is discriminated against by an employer based on their age is protected (even if they are not yet an employee). Initially, the Fourth Circuit in Villarreal v. R.J. Reynolds Tobacco Co., 839 F3d 958, 961 (11^th Cir. 2016) upheld the district court’s dismissal of an ADEA suit claiming that Villareal was unfairly discriminated against by R.J. Reynolds and that his fully qualified job application was dismissed because R.J. Reynolds was looking for younger recruits only. Id. R.J. Reynolds had issued hiring guidelines “describing their ‘targeted candidate’ as someone ‘2-3 years out of college’ who ‘adjusts easily to change’” and “‘to stay away from’ applicants ‘in sales 8-10 years.’” Id. The court justified dismissing the claim because it construed the ADEA language (section 4(a)(2)) to protect only current employees from discrimination and not job applicants. Id. at 963. However, the dissent disagreed pointing out that the ADEA protects “any individual” from age discrimination and not just employees.

In February 2017, the Northern District Courtof California in Rabin v. PricewaterhouseCoopers, LLP, No. 16-cv-02276-JST, 2017 U.S. Dist. Lexis 23224 at *1 (N.D. Cal. Feb. 17, 2017) permitted an ADEA disparate-impact claim to proceed. Building on the Villareal dissent, the court in Rabin held that the ADEA protected “any individual” not just current employees, and therefore, practices which disparately impact people based on age are prohibited by the ADEA even if they are not yet employed. Id. at *17.