New Jersey Appellate Division Holds Age Discrimination Plaintiff Need Not Show She Was Replaced or Her Employer Sought a Replacement

The New Jersey Appellate Division recently held that in an age discrimination case, the fourth element of the plaintiff’s prima facie burden—that plaintiff was replaced (or the employer sought a replacement) by someone sufficiently younger to permit an inference of age discrimination—is a “flexible” prong that can be met under various alternate circumstances. Cohen v. University of Medicine and Dentistry of New Jersey, A-1300-12T1 (Dec. 30, 2013). Citing a Second Circuit Court of Appeals case brought under the Age Discrimination in Employment Act, the Appellate Division listed the following factual scenarios that could satisfy the flexible fourth prong of a New Jersey Law Against Discrimination age case: (1) actions or remarks made by a decision maker reflecting a discriminatory animus; (2) preferential treatment given to employees outside the protected class; (3) in a corporate downsizing, a systematic transfer of a discharged employee’s duties to other employees; (4) a pattern of recommending plaintiff for positions for which he or she is not qualified and failure to surface plaintiff’s name for positions for which he or she is well qualified; (5) continued seeking of applicants to fill the position after plaintiff’s termination; or (6) the timing and sequence of events leading to a termination.