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In Age Discrimination, Age is More Than Just a Number

Just how much younger than you does your replacement have to be to support a claim for age discrimination? A recent New Jersey case concludes that the number isn't necessarily so important. (Cohen v. UMDNJ)

Marion Cohen worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) as an associate professor of anatomy and cell biology and injury sciences pursuant to a series of one, two and three-year employment contracts. In late 2008 or early 2009 UMDNJ informed her it was not going to renew her contract, supposedly due to budget cuts. At the time, Ms. Cohen was 69 years old.

Ms. Cohen subsequently sued UMDNJ for age discrimination under the New Jersey Law Against Discrimination (LAD). However, the trial judge dismissed her case on a motion for summary judgment, finding she did not have sufficient evidence to prove UMDNJ either sought to or in fact replaced her with someone younger, and had no evidence that her employer disproportionately terminated older employees. Ms. Cohen appealed.

The appeals court ruled for Ms. Cohen, stating that an employee does not necessarily need to show a significant difference in age to support a finding of discrimination. If noted that "an age discrimination case is not governed by a "mechanistic application" of the ages of the relevant players because '[s]eldom will a sixty-year-old be replaced by a person in the twenties. Rather the sixty-year-old will be replaced by a fifty-five-year-old, who, in turn, is succeeded by a person in the forties, who also will be replaced by a younger person.'"

The court also noted that factors other than age can come into play, such as discriminatory actions or comments by someone involved in the termination decision, favoritism toward younger employees, or a pattern of recommending the older worker for positions for which she is not qualified or failing to consider her for positions for which she is qualified. Also, depending on the circumstances, the timing or sequence of events leading up to the decision to fire the employee also can support a finding of discrimination.

So don't assume you must prove that you were replaced by someone your child's age to succeed at a claim for age discrimination!

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