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Union, New Jersey, Legal Blog

Age discrimination in the workplace is common

According to a report issued the United States Equal Employment Opportunity Commission, only three percent of older adults who are victims of workplace discrimination will submit a formal complaint to their employer or the appropriate government agency. The report is based on research conducted by the AARP.

There are additional studies that show that as much as 60 percent of workers who are at least 45 years of age have witnessed or have been a victim of age discrimination in the workplace. Ninety percent of those workers state that the discriminatory behavior is prevalent in the workplace.

Pregnancy discrimination remains a risk for women

Pregnant women in New Jersey and across the country continue to face discrimination in the workplace whether through denial of promotions, altered job tracks or even dismissal. In some of America's largest corporations, women continue to face discriminatory treatment despite these being corporations with significant legal counsel and knowledge that pregnancy discrimination is unlawful.

In one case, a pregnant woman working at a Walmart distribution center was ordered to get a doctor's note in order to take a break due to morning sickness. When she sought a reassignment away from heavy lifting work supported by medical documentation, her supervisor called her a "liability" and suggested she take unpaid leave.

Discrimination for gender identity and expression still common

In many ways, our society has become more open about the fact that some people express their gender differently than others. The gender transitions of famous celebrities, as well as many works of art and popular culture that focus on the topic have helped to create greater understanding and tolerance.

However, there is still much work required for true equality. People who have unique or unusual gender identities, as well as those who express gender differently, can still face discrimination in the workplace.

Court denies employer summary judgment in age discrimination case

Job applicants in New Jersey might recognize the excuse that too much experience disqualifies someone for a job as age discrimination. A lawsuit recently filed by a man in his early 60s concerns this tactic for denying jobs to older candidates. His employer, a microelectronics company, asked a judge to issue a summary judgment in its favor, but the judge denied the motion. The judge deemed the evidence sufficient for the age discrimination case to advance to a jury trial.

The plaintiff had worked for the company twice as a temporary employee. When he saw that a position that he had filled in for previously was vacant, he applied for the job. The position required roughly 10 years of experience. The man satisfied all requirements, but he claimed that the supervisor said that the company did not want people with excessive experience who would be "inflexible." When the company hired a 36-year-old applicant for the job, the man decided to pursue a discrimination claim.

Workplace discrimination still a major problem for women

For many New Jersey women in the workplace, the impact of gender discrimination and sexual harassment continues to be significant. The #MeToo movement has drawn attention to systematic discrimination against women in many industries and highlighted the fact that while progress has been made over the years, there are still significant problems with which to contend. Public calls for sex and gender equality have become prominent and well-accepted, yet women in the workplace continue to face barriers to advancement as well as unwanted sexual attention.

One 2018 poll showed that experiences of workplace discrimination on the basis of gender had not changed very much since 1999, at least in terms of basic numbers. However, there were also improvements shown in the poll. Nearly half of the respondents said that their salaries were higher than their husbands, a significant difference from the 1999 results. In addition, male-dominated industries have become less dominated; there has been a major increase in the number of women working in IT, trucking, physics and STEM fields. However, serious problems were also revealed in the survey results.

Women face greater burden of age discrimination at work

Women in New Jersey who focus on their careers later in life face challenges based on both gender and age stereotypes. Although many people harbor negatives associations about both older men and women, people judge older women more harshly on their physical appearance than older men according to a study by the National Bureau of Economic Research.

In the workplace, management might perceive older women as unable to keep up with the pace of work or lacking in technological knowledge. Assumptions like these sometimes create discrimination in the form of lack of promotion, marginal work assignments or outright job termination.

Law might not protect workers at small companies from harassment

Title VII of the Civil Rights Act of 1964 prohibits employers in New Jersey from discriminating against workers. Mistreatment inspired by someone's race, religion, national origin or sex is illegal for employers. However, federal law fails people who work for small companies or private households. Federal law only applies to employers with 15 or more employees.

Nationwide, millions of people fall through the cracks in federal employment law. Everyone who works at small businesses with under 15 employees, as well as farm hands on small farms and domestic workers in private households, might experience harassment with limited legal protections. Domestic workers and farm hands often face their problems in isolation behind closed doors or in remote fields. In many cases, existing laws also expose contract workers in the rising gig economy to discrimination that the law does not apply to.

How employment contracts complicate harassment cases

Employees who are victims of sexual harassment may face hurdles when it comes to speaking out about their experiences. This is because employers put arbitration clauses inside of their contracts. Therefore, victims don't have the right to go to court to pursue legal action, and they generally can't appeal an arbitrator's decision. One attorney even stopped defending employers after finding out what their contracts said.

While arbitration may seem to be stacked against an employee, one lawyer didn't see it that way. He said that cases brought to court could easily be dismissed whereas an arbitrator will hear both sides equally and is therefore more likely to work toward a solution to the problem when there is common ground. This lawyer defends employers in harassment cases, and he says that there can be multiple ways to achieve justice for victims. Despite this defense of arbitration clauses, lawmakers are attempting to get rid of them.

Older workers not favored by IBM

According to data from ProPublica, IBM has gotten rid of roughly 20,000 workers aged 40 and older over the past five years. That is roughly 60 percent of those who work for the company. This has been accomplished by asking older employees to take early retirement, laying them off or simply terminating them outright. In some cases, workers in New Jersey and around the country were terminated and rehired as consultants.

IBM says that it is proud of its employees and complies with the law. ProPublica and Mother Jones used stories from over 1,000 former IBM workers as well as company documents to uncover the allegedly widespread age discrimination. The shift toward a preference for younger workers began in 2014 as the company wanted to focus more on cloud storage and analytics. Under the Age Discrimination in Employment Act, it is illegal to discriminate against people who are aged 40 or older when making employment decisions.

Proving age discrimination at work

The Age Discrimination in Employment Act of 1967 makes it illegal to fire people based on their age alone. However, it may be difficult for a New Jersey worker or anyone else to prove that it was the primary factor for being terminated. To prove a case of age discrimination, it may be necessary to look at overall trends within the company.

For example, people could show that older workers weren't being promoted or that they were the only ones who got laid off. Ageism may also be easier to prove if younger people hold the majority of leadership positions or overall positions within a company. Of course, it is possible that a supervisor or owner made a statement indicating that a person's age was the reason why he or she was being let go. If such a statement is made, a worker should look for anyone who could verify that fact.

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