(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 9, 1998 -- Decided February 24, 1999
STEIN, J., writing for a unanimous Court.
In this case of first impression, the Court considers whether Michael Sisler, twenty-five years old at
the time of his discharge, can invoke the anti-age-discrimination provision of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42, as a basis for his claim that he was wrongfully terminated
because of his employer's perception that he was too young for the job.
In 1993, Michael Sisler was recruited by Bergen Commercial Bank (Bergen Bank) to operate its
merchant credit-card programs. After Sisler accepted the position of vice-president of credit-card operations,
and shortly before beginning his employment with Bergen Bank, he had lunch with Tony Bruno, Bergen
Bank's chairman and co-founder. During that meeting, Bruno for the first time asked Sisler his age. When
Sisler responded that he was twenty-five years old, Bruno “appeared shocked” and asked Sisler not to tell
anyone else his age, indicating that it “would be embarrassing to [Bruno] if other people in the bank found
out how old [Sisler] was and what [he] had been hired for, both [his] responsibilities and [his] salary.
Thereafter, eight days after commencing his employment with Bergen Bank, Bruno and Mark
Campbell, president and chief executive officer of Bergen Bank, called Sisler into Bruno's office for a
meeting, during which they informed Sisler that they “didn't think this was going to work,” that “they
wanted to make some changes,” and that Sisler might be terminated. As an alternative, they suggested that
Sisler relinquish his position and work for the bank in some other capacity. Sisler told Bruno and Campbell
that he felt they had not given him an opportunity to prove himself and refused alternative employment.
Sisler was terminated on January 21, 1994, less than five months after commencing his employment
with Bergen Bank. During the brief course of his employment, he was never informed by Bruno or
Campbell of any deficiencies in his performance. Rather, the termination followed a meeting during which
Bruno and Campbell explained that it simply “wasn't working out.” Thereafter, the bank replaced Sisler
with Kenneth Hardaker, aged thirty-one.
After an unsuccessful attempt to settle his potential age discrimination claim, Sisler's attorney
informed the bank that he intended to file a lawsuit. However, before the lawsuit could be filed, the bank
filed a complaint against Sisler alleging conversion of bank files, breach of duty of loyalty, intentional
interference with business relations, and trespass. Sisler filed an answer and a counterclaim, asserting
employment discrimination on the basis of age, in violation of the LAD, and breach of contract.
Thereafter, Bergen Bank filed a motion for summary judgment on Sisler's LAD counterclaim,
asserting that LAD's prohibition against age discrimination does not apply to twenty-five-year-old claimants.
The trial court granted the motion, holding that it was the legislature's intent to limit the age protected class
to persons above forty years of age.
The Appellate Division reversed the dismissal of Sisler's counterclaim, finding that the LAD does
not limit its protection to older workers. In addition, the court found that because older workers from the
presumptive protected class under the anti-age-discrimination provision of the LAD, Sisler's claim is
appropriately analyzed on the basis of the “reverse-discrimination” formulation adopted by the New Jersey
Supreme Court.
The Supreme Court granted Bergen Bank's petition for certification.
HELD: The Law Against Discrimination's prohibition against age discrimination is not limited to the
protection of older workers and is broad enough to accommodate Sisler's claim of age discrimination based
on youth.
1. The purpose of the LAD is to ban employment discrimination on the basis of certain enumerated
attributes, including age. (pp. 6-7)
2. Age discrimination claims under the LAD and the Age Discrimination in Employment Act (ADEA) are
governed by the same standards and burden of proof structures applicable under Title VI of the Civil Rights
Act of 1964. (pp. 7-8)
3. Unlike the LAD, the ADEA by its terms limits its protection to “older” workers. (pp. 8-10)
4. Where a provision of the LAD differs substantively from Title VII or the ADEA a court must conduct its
own analysis in order to discern the underlying legislative intent. Where the statutory language is clear and
unambiguous, courts will implement the statute as written without resort to judicial interpretation, rules of
construction, or extrinsic matters. (pp. 10-11)
5. The divergent interpretations of the trial court, of the Appellate Division, and of other states militate
against a finding that the meaning of the term “age” is facially obvious or self-evident. (pp. 11-14)
6. Reading the anti-age-discrimination provisions of the LAD as applying only to workers over forty would
render portions of Section 2.1 inoperative, superfluous, or meaningless. (pp. 14-15)
7. Given the contradictory interpretations of the statute by the courts below, legislative intent may be sought
by reliance on extrinsic aids such as legislative history, legal commentary and prior precedent. In this regard,
the reports of special committees or commissions appointed to study and suggest legislation are considered
valuable aids. (pp. 15-18)
8. In a case alleging age discrimination under the LAD, an employee must show, by either direct or
circumstantial evidence, that the prohibited consideration played a role in the decision making process and
that it had a determinative influence on the outcome of that process. (p. 19)
9. Direct evidence produced must demonstrate not only a hostility toward members of the employee's class,
but also a direct causal connection between that hostility and the challenged employment decision. Where an
employee is able to establish a direct prima facie case that age was a substantial factor in an adverse
employment decision, the burden then shifts to the employer to show it would have made the same decision
even in the absence of the impermissible consideration. (pp. 19-22)
10. An employee may prove an employer's discriminatory intent through circumstantial evidence using the
burden-shifting methodology described by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green,
which is a three-stage process throughout which the burden of production shifts - the employee at all phases
retaining the burden of proof that the adverse employment action was caused by purposeful or intentional
discrimination. (pp. 22-25)
11. The criteria of a prima facie showing under McDonnell Douglas provide only a general framework for
analyzing unlawful discrimination claims and must be modified where appropriate in order to conform the
test to differing factual contexts. (pp. 25-27)
12. Because the presumption of discrimination arising solely from one's membership in a historically disfavored
group is not necessarily justified when the individual is a member of the majority, courts have required a
showing of background circumstances supporting the suspicion that the employer discriminates against the
majority. (pp. 27-28)
13. The LAD's prohibition against age discrimination is broad enough to accommodate Sisler's claim of age
discrimination based on youth. To the extent that Burke v. Township of Franklin is inconsistent, it is overruled.
(pp. 29-30)
14. There is no evidence of legislative intent to exclude younger workers from the LAD's anti-age-discrimination protection, and related state anti-discrimination legislation supports the conclusion that the LAD
protects against age discrimination directed at young workers. (pp. 30-31)
15. A broad construction of the LAD is entirely consistent with the underlying purpose of anti-discrimination
laws to discourage the use of categories in employment decisions that ignore the individual characteristics of
particular applicants. (pp. 31-32)
16. Sisler failed to produce direct evidence of a causal link between Bruno's dismay on learning of his age,
lacking which he must resort to the McDonnell Douglas standard in attempting to establish a prima facie case of
discrimination. (pp. 32-33)
17. Because Sisler is not a member of a historically disadvantaged class, he must conform his proofs to a
heightened “reverse discrimination” formulation. Although Sisler need not show that he was replaced by a
member of the presumptive protected class of “older” workers, he must prove that he was doing his job well
enough to rule out the possibility that he was fired for inadequate job performance, and that his employer
sought a replacement with qualifications similar to his own, demonstrating a continued need for the same
services and skills. (pp. 34-36)
18. The fact that many legitimate reasons for rejecting, terminating, or promoting an employee have a strong
and natural correlation with age does not render those reasons suspect for purposes of LAD, so long as age, per
se, is not a determinative factor. (pp. 36-38)
Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Law Division
for further proceedings consistent with this opinion and the opinion of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
179 September Term 1997
BERGEN COMMERCIAL BANK,
Plaintiff-Appellant,
v.
MICHAEL SISLER,
Defendant-Respondent.
Argued November 9, 1998 -- Decided February 24, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
307 N.J. Super. 333 (1998).
Angelo J. Genova argued the cause for
appellant (Genova, Burns & Vernoia,
attorneys; James M. Burns, of counsel;
Elizabeth A. Daly, on the brief).
Kevin M. Kiernan argued the cause for
respondent (McDonough, Kiernan & Campbell,
attorneys).
The opinion of the Court was delivered by
STEIN, J.
This is a case of first impression requiring the Court to
decide whether respondent Michael Sisler, twenty-five years old
at the time of his discharge, can invoke the anti-age-discrimination provisions of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42, as a basis for his
claim that he was wrongfully terminated because of his employer's
perception that he was too young for the job. Should the Court
decide that such a claim is cognizable under the LAD, the Court
must also determine the appropriate substantive and procedural
framework under which a claim alleging employment discrimination
on the basis of youth should be evaluated.
Shortly before starting his employment with Bergen Bank, Sisler met Bruno for lunch. During this lunch meeting, Bruno for the first time asked Sisler his age. When Sisler responded that he was twenty-five years old, Bruno allegedly “appeared shocked” and asked Sisler not to tell anyone else his age. Bruno indicated that it “would be embarrassing to [Bruno] if other people in the bank found out how old [Sisler] was and what [he] had been hired for, both [his] responsibilities and [his] salary.”
On September 1, 1993, Sisler commenced work with Bergen Bank. Eight days later, Bruno and Campbell called Sisler into Bruno's office for a meeting. According to Sisler, Bruno and Campbell indicated that “they didn't think this was going to work,” that “they wanted to make some changes,” and that Sisler might be terminated. As an alternative, Bruno and Campbell suggested that Sisler relinquish his position and work for the bank in another capacity, perhaps as a consultant. Sisler reacted to the news with surprise. He was incredulous that they could reach such a negative decision about his abilities after such a short period of employment and without having spoken to him about their dissatisfaction. Sisler told Bruno and Campbell that he felt they had not given him an opportunity to prove himself. He therefore refused an alternative employment arrangement and maintained his vice-president position.
During the course of his brief employment with Bergen Bank, Sisler was never informed by Bruno or Campbell of any deficiencies in his performance. Sisler was nonetheless terminated on January 21, 1994, less than five months after commencing his employment with the bank. The termination followed a meeting during which Bruno and Campbell explained that it simply “wasn't working out.” Thereafter the bank replaced Sisler with Kenneth Hardaker, aged thirty-one.
After an unsuccessful attempt to settle his potential age discrimination claim, Sisler's attorney informed the bank that he intended to file a lawsuit. In August 1994, before Sisler's lawsuit could be filed, Bergen Bank filed the instant complaint against Sisler alleging conversion of bank files, breach of duty of loyalty, intentional interference with business relations, and trespass.See footnote 1 Sisler filed an answer and counterclaim, asserting one count of employment discrimination on the basis of age, in violation of the LAD, and one count of breach of contract.
In February 1996, although interrogatories were outstanding and Sisler had not yet deposed Bruno or Campbell, Bergen Bank filed a motion seeking partial summary judgment on Sisler's LAD counterclaim. In support of its motion, the bank asserted that the LAD's prohibition of age discrimination does not apply to twenty-five-year-old claimants. The trial court granted Bergen Bank's summary judgment motion, holding “there is no doubt of the intent of the legislature” to limit the “age” protected class to persons above forty years of age. Sisler's motion for reconsideration was denied. In February 1997, the parties agreed to dismiss voluntarily and without prejudice all remaining claims, for the purpose of allowing respondent to appeal the trial court's decision that the LAD's protection was limited to persons over the age of forty.
The Appellate Division reversed the dismissal of Sisler's counterclaim. Bergen Commercial Bank v. Sisler, 307 N.J. Super. 333 (1998). Initially, the court found that the LAD does not limit its protection to older workers but more broadly affords protection to any worker, whether old or young, who suffers an adverse employment action on account of age. Id. at 342. In addition, the court found that because older workers form the presumptive protected class under the anti-age-discrimination provisions of the LAD, Sisler's claim that he was fired based on his employer's perception that he was too young for the job is appropriately analyzed on the basis of the “reverse-discrimination” formulation adopted by this Court in Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990). 307 N.J. Super. at 346-47. This Court granted Bergen Bank's petition for certification. 153 N.J. 216 (1998).
The principal issue on appeal is whether the Legislature, in amending the LAD to prohibit age-based employment discrimination, completely eliminated “age” -- whether old or young -- as a permissible factor in employment decisions or whether, alternatively, the Legislature in its proscription intended to protect only the historically disadvantaged class of older workers.
A
Two sections of the LAD prohibit age discrimination. N.J.S.A. 10:5-4 provides in pertinent part:
All persons shall have the opportunity to obtain employment . . . without discrimination because of . . . age . . ., subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.
N.J.S.A. 10:5-12(a) in pertinent part provides:
It shall be an unlawful employment
practice, or, as the case may be, an unlawful
discrimination . . . [f]or an employer,
because of the . . . age . . . of any
individual . . . to refuse to hire or employ
or to bar or to discharge or require to
retire . . . from employment such individual
or to discriminate against such individual in
compensation or in terms, conditions or
privileges of employment . . . .
The determination of whether those provisions protect only older
workers from age discrimination is a question of statutory
interpretation requiring the Court to construe N.J.S.A. 10:5-4
and -12(a) in a manner consistent with both the LAD's plain
language and its underlying purpose.
As a starting point, this Court in “outlining approaches and
infusing discrimination claims under the LAD with substantive
content” typically has looked to federal cases arising under
analogous provisions of Title VII of the Civil Rights Act of
1964,
42 U.S.C.A.
§2000e-2 (Title VII) and the Age
Discrimination in Employment Act, see
29 U.S.C.A.
§623(a) and
§ 631(a) (ADEA). Grigoletti v. Ortho Pharm. Corp.,
118 N.J. 89,
96-97 (1990); see also Waldron v. SL Indus., Inc.,
849 F. Supp. 996, 1000 (D.N.J. 1994) (“Age discrimination claims under the LAD
and the ADEA are governed by the same standards and burden of
proof structures applicable under Title VII of the Civil Rights
Act of 1964. . . .”), rev'd on other grounds,
56 F.3d 491 (3d
Cir. 1995); Shaner v. Horizon Bancorp.,
116 N.J. 433, 437 (1989)
(“[The LAD] standards have been influenced markedly by the
experience derived from litigation under federal anti-discrimination statutes.”); Giammario v. Trenton Bd. of Educ.,
203 N.J. Super. 356, 361 (App. Div.) (holding plaintiffs' LAD
claim of age discrimination under disparate impact theory
appropriately analyzed by reference to federal cases addressing
disparate impact claims arising under “[s]imilar provisions” of
the ADEA and Title VII), certif. denied,
102 N.J. 336 (1985),
cert. denied,
475 U.S. 1141,
106 S. Ct. 1791,
90 L. Ed.2d 337
(1986). To the extent the federal standards are “useful and
fair,” they will be applied in the interest of achieving a degree
of uniformity in the discrimination laws. Peper, supra, 77 N.J.
at 81.
Consistent with that approach, Bergen Bank urges the Court
to adopt the reasoning in Burke v. Township of Franklin,
261 N.J.
Super. 592, 601 (App. Div. 1993), in which the Appellate Division
held that the plaintiff, thirty-nine years old at the time of his
application for a police promotion, did not fall within the LAD's
protected “age” class. Relying on the proposition that LAD age
discrimination claims “should be 'analyzed by examination of
federal cases arising under Title VII and the ADEA,'” the Burke
panel read the ADEA's “at least 40 years of age” restriction into
the LAD. Id. at 601-02 (quoting Giammario, supra, 203 N.J.
Super. at 361); cf. Fischer v. Allied Signal Corp.,
974 F. Supp. 797, 805 (D.N.J. 1997) (predicting New Jersey would incorporate
ADEA “over-forty” age specification into LAD).
In this case, however, the Appellate Division disagreed with
the holding in Burke, citing differences between the pertinent
language of the LAD and that of the ADEA. The ADEA provides in
pertinent part:
It shall be unlawful for an employer --
(1) to fail or refuse to hire or to
discharge any individual or otherwise
discriminate against any individual with
respect to his compensation, terms,
conditions, or privileges of employment,
because of such individual's age;
(2) to limit, segregate, or classify
his employees in any way which would deprive
or tend to deprive any individual of
employment opportunities or otherwise
adversely affect his status as an employee,
because of such individual's age . . . .
Further,
29 U.S.C.A.
§631(a) specifies that “[t]he prohibitions
in [the ADEA] shall be limited to individuals who are at least 40
years of age.” Thus, unlike the LAD, the ADEA by its terms
limits its protection to “older” workers. See Robinson v. Sizes
Unlimited, Inc.,
685 F. Supp. 442, 446 n.8 (D.N.J. 1988)
(recognizing that LAD, unlike ADEA, does not contain minimum age
limit); Murray v. Newark Hous. Auth.,
311 N.J. Super. 163, 172
n.6 (Law Div. 1998) (noting that factors derived from federal
precedent must be modified to reflect fact that LAD, unlike ADEA,
does not specify ages to which it applies).
Where a provision of the LAD differs substantively from
Title VII or the ADEA, a court must conduct its own analysis in
order to discern the underlying legislative intent. Lehmann v.
Toys 'R' Us, Inc.,
132 N.J. 587, 600-01 (1993); Grigoletti,
supra, 118 N.J. at 107-08. The first step in any statutory
analysis is to examine the statute's plain language as the
clearest indication of its meaning. National Waste Recycling,
Inc. v. Middlesex County Improvement Auth.,
150 N.J. 209, 223
(1997); State v. Szemple,
135 N.J. 406, 421 (1994); Merin v.
Maglaki,
126 N.J. 430, 434 (1992). Where the statutory language
is “clear and unambiguous,” courts will implement the statute as
written without resort to judicial interpretation, rules of
construction, or extrinsic matters. In re Estate of Post,
282 N.J. Super. 59, 72 (App. Div. 1995). Sisler argues that because
N.J.S.A. 10:5-4 and -12(a) protect “[a]ll persons” from
employment discrimination on the basis of age and neither
section, on its face, specifies an age at which persons qualify
for this protection, the language of N.J.S.A. 10:5-4 and -12(a)
is clear and does not create ambiguities.
A statute's meaning is not self-evident, however, where
varying interpretations of the statute are plausible. National
Waste, supra, 150 N.J. at 223; Szemple, supra, 135 N.J. at 421-22. In this case, the trial court narrowly construed the term
“age” as referring only to older workers. The Appellate Division
disagreed and concluded that the LAD should be interpreted more
broadly as protecting workers of any age from employment
discrimination based upon that attribute. Those divergent
interpretations militate against a finding that the meaning of
the term “age” is facially obvious or self-evident. Szemple,
supra, 135 N.J. at 421-22.
Similarly, the courts of Washington and Oregon have
disagreed on whether younger workers are protected by state anti-age-discrimination provisions that, like New Jersey's, do not
facially limit the protected class to older workers. In Gross v.
Lynnwood,
583 P.2d 1197, 1198 (Wash. 1978), the Supreme Court of
Washington rejected the thirty-five-year-old plaintiff's claim
that his application for employment as a firefighter was
unlawfully rejected on the basis of his age. Although the
state's law against age discrimination, Wash. Rev. Code Ann. §
49.60.180 (Section 180), on its face, did not limit its
protection to persons of any particular age group, the court felt
constrained to read Section 180 in pari materia with another
section adopted in the same legislation, Wash. Rev. Code Ann. §
49.44.090 (Section 90), thereby limiting Section 180 “to
situations where the discriminatee is between the ages of 40 and
65.” Id. at 1199. That interpretation, the court concluded, was
consistent with “the general purpose of an age discrimination
statute . . . to provide protection for the mature worker who may
encounter difficulty obtaining or maintaining employment in a
youth oriented market.” Ibid.
Conversely, in Ogden v. Bureau of Labor,
699 P.2d 189, 191-92 (Or. 1985), the Supreme Court of Oregon affirmed that portion
of an appellate court's holding that extended the state's anti-age-discrimination provisions to plaintiffs under forty years of
age. See Ogden v. Bureau of Labor,
682 P.2d 802, 807 (Or. Ct.
App. 1984). In Ogden, the thirty-year-old plaintiff alleged she
was not hired for a beautician position on the basis of her age.
Oregon's anti-discrimination statute provided, in pertinent part,
that
it is an unlawful employment practice . . .
[f]or an employer, because of an individual's
. . . age if the individual is 18 years of
age or older and under 70 years of age . . .
to refuse to hire or employ or to bar or
discharge from employment such individual.
[Ogden, supra, 682 P.
2d at 807 (quoting Or.
Rev. Stat. § 659.030(1)(a)).]
Based on a plain reading, the court found that the plaintiff, who
was “over the age of 18 and under the age of 70[, was] . . .
entitled to rely on this statute.” Ogden, supra, 682 P.
2d at
807. Recognizing that the defendant's clientele “averaging
between 80 and 95 years of age [might] prefer the company of a
person in mid-life,” the court nonetheless concluded that “there
is nothing . . . to suggest that a younger person, otherwise
qualified as a beautician, would disrupt the normal operation of
[the defendant's] business.” Id. at 810. Moreover, the court
observed that
[t]he purpose of employment discrimination
statutes is to discourage the use of
categories in employment decisions which
ignore the individual characteristics of
particular applicants. By declaring
discrimination on the basis of age an
unlawful employment practice, the legislature
recognized that age alone may bear no
relation to a person's ability to perform a
job or contribute to society. This is not to
deny that age indirectly figures into
employment decisions based on experience
requirements. Such requirements are valid
when they relate to the demonstrated needs of
the employer and the actual capabilities of
an individual to perform the job. But, when,
as here, a qualified applicant is not hired
for an available position, no legitimate
reason is offered for not hiring that person
and age per se was a factor in the decision,
we hold that the commissioner did not err in
concluding that the decision constitutes an
unlawful employment practice under ORS
659.030(1)(a).
[Ibid.]
Thus, whereas the Washington court felt constrained by
policy considerations to limit its age discrimination provisions
to “mature workers,” the Oregon court, reading its statute
plainly, concluded that “age” should not be so narrowly
construed, citing the broad legislative purpose behind
discrimination laws of discouraging employer reliance on
stereotypes rather than individual assessments. Those decisions
lend support to Bergen Bank's position in this case that the
legislative intent in proscribing age discrimination is not
apparent on the statute's face.
In interpreting a statute courts should avoid a construction
that would render “any word in the statute to be inoperative,
superfluous or meaningless, or to mean something other than its
ordinary meaning.” Estate of Post, supra, 282 N.J. Super. at 72.
N.J.S.A. 10:5-2.1 (Section 2.1) which sets terms of “General
construction” for the LAD, establishes certain acceptable age
limitations:
Nothing contained in this act . . .
shall be construed to require . . . the
employment of any person under the age of 18,
nor to prohibit the establishment and
maintenance of bona fide occupational
qualifications or the establishment and
maintenance of apprenticeship requirements
based upon a reasonable minimum age, nor to
prevent the termination or change of the
employment of any person who in the opinion
of the employer, reasonably arrived at, is
unable to perform adequately the duties of
employment, nor to preclude discrimination
among individuals on the basis of competence,
performance, conduct or any other reasonable
standards . . . .
Section 2.1 thus permits employers to deny employment to persons
“under the age of 18,” but otherwise prohibits age discrimination
unless an age limitation qualifies as a “bona fide occupational
qualification” or a reasonable apprenticeship requirement.
Arguably, reading the anti-age-discrimination provisions of the
LAD as applying only to workers over forty would render those
portions of Section 2.1 “inoperative, superfluous or
meaningless.” Estate of Post, supra, 282 N.J. Super. at 72.
Moreover, in the public employment sector the Legislature
has explicitly stated its intent to limit discrimination
protections to a particular age group. The Employment in Public
Service Law, N.J.S.A. 10:3-1, provides in pertinent part:
In the selection of persons for
employment in the service of the State, or of
any county or municipality thereof, no
appointing officer shall discriminate against
any such applicant because such applicant has
attained the age of at least 40 years, at the
time of his said application for employment.
Given the contradictory interpretations of the statute by
the courts below, we may rely upon extrinsic aids such as
legislative history, legal commentary and prior precedent, if
available, in seeking the legislative intent. National Waste,
supra, 150 N.J. at 224. Unfortunately, the 1962 amendment to the
LAD, which added “age” to the statute's list of protected
classes, contains no statement of purpose. L. 1962, c. 37. The
statute's legislative history is, as the Appellate Division
noted, “scant at best” and unilluminating of the enactment's
purpose. Therefore, Bergen Bank urges the Court to consider, as
evidence of the Legislature's intent to limit the LAD's age
discrimination provisions to persons forty years and older, two
studies released prior to passage of the “age” amendment.
Although there is no indication that the Legislature relied on or
adopted these studies, they may bear on the legislative purpose
in that they were issued just prior to passage of the amendment,
and one of the studies was conducted by the New Jersey Commission
on Aging (COA), established by the Legislature in 1959. See
Shapiro v. Essex County Bd. of Chosen Freeholders,
177 N.J.
Super. 87, 93 (Law Div. 1980) (“In seeking the intent of the
Legislature, any history which may be of aid must be consulted.
In this regard, the reports of special committees or commissions
appointed to study and suggest legislation are considered
valuable aids.”) (citations omitted).
The first, “A Positive Study Towards Aging,” was published
by the Old Age Study Commission (OASC) in 1957 as a collection of
data compiled by the OASC through public hearings on the subject
of aging. One chapter of the study entitled “The Economics of
Aging,” considers the needs of older workers, the impact of
outdated stereotypes about older workers on their ability to
secure and maintain employment, and suggestions for increasing
the number of older workers in the marketplace. Although the
OASC study does not suggest expanding the LAD's protected class
to include older workers, it does note substantial evidence “that
in the modern labor market workers were beginning to encounter
'age barriers' in job changes as early as 45, and that for women
. . . this age discrimination was encountered as low as age 35.”
The second study, entitled “Discrimination in Employment
Because of Age,” was published by COA in 1959. Citing several
studies dispelling outdated stereotypes regarding the efficiency,
judgment and work quality of older workers, as well as a trend
toward enactment of state anti-age-discrimination legislation,
the COA study concludes that “[a]rbitrary discrimination in
employment against persons solely because they are over 45 years
of age is emerging as a major social and economic problem facing
America today.” Based on its findings, COA explicitly suggests
that the Legislature “include arbitrary discrimination in
employment because of age between 45 and 65 as an unlawful
employment practice.” In support of its recommendation that the
Legislature specify qualifying ages for the LAD's protections,
the COA study notes that:
A major issue in consideration of past
proposed bills in New Jersey has been the
definition of ages to be covered in the New
Jersey statute. Specification of ages is
needed because (1) anti-discrimination laws
must not interfere with laws on child and
female labor. (2) The problem of age
discrimination is one of employers' setting
arbitrary limits on maximum ages for hiring;
but it is legitimate and justified for an
employer frequently to set minimum age and
experience requirements. Specification of
age coverage in legislation can eliminate
possible conflict with this sound practice,
as minimum age specifications almost always
center around ages of 25 to 30. (3)
Substantially different problems are
encountered when dealing with workers over 65
as compared with the 45 to 65 age group . . .
. Although strong arguments exist in favor of
raising the mandatory retirement age from 65
to a higher age . . . , the prevalence of 65
as normal retirement age both by the Social
Security System and by the majority of
private retirement plans makes it unwise to
legislate anti-discrimination laws for
persons over 65 years of age.
The studies by COA and OASC do evidence the societal
problems faced by older persons in the workplace at the time the
1962 amendment was passed. Given the timing of the studies, the
Legislature may well have considered them, especially the COA
study, in passing the 1962 amendment. On the other hand, even
assuming the Legislature acted in direct response to COA's
suggestion to amend the LAD, it is clear that COA's
recommendation that the protected class be limited to persons
aged 45 to 65 was not adopted even though “[a] major issue in
consideration of past proposed bills . . . ha[d] been the
definition of ages.”
In a case alleging age discrimination under the LAD, an employee must “show that the prohibited consideration[, age,] played a role in the decision making process and that it had a determinative influence on the outcome of that process.” Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 344 (App. Div.) (quoting Miller v. CIGNA Corp., 47 F.3d 586, 597 (3d Cir. 1995)), certif. denied, 152 N.J. 189 (1997); Greenberg v. Camden County Vocational & Technical Sch., 310 N.J. Super. 189, 198 (App. Div. 1998); cf. Rendine v. Pantzer, 276 N.J. Super. 398 (App. Div. 1994) (holding no plain error in jury charge that plaintiff required to prove maternity leave and child birth were “substantial” rather than “determinative” factors in her discharge), aff'd, 141 N.J. 292 (1994). Although the discrimination must be intentional, see Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 383 (1988), an employee may attempt to prove employment discrimination by either direct or circumstantial evidence. Greenberg, supra, 310 N.J. Super. at 198.
Where an employee is able to satisfy this rigorous burden and establish a direct prima facie case that age, per se, was a substantial factor in an adverse employment decision, the burden then shifts to the employer to show it would have made the same decision even in the absence of the impermissible consideration. See Price Waterhouse, supra, 490 U.S. at 242, 109 S. Ct. at 1786, 104 L. Ed. 2d at 283. By allowing an employer to avoid liability even where an impermissible factor contributed to an employment decision, the so-called “mixed-motive” analysis acknowledges that while an employer may not take age into account, it is free to decide against an employee for “other reasons.” Id. at 244-45, 109 S. Ct. at 1775, 104 L. Ed. 2d at 284; see also Maiorino, supra, 302 N.J. Super. at 345 (noting that employer is free to discharge employee “'for good reason, bad reason, or no reason at all,' as long as there is no intentional age discrimination” (quoting Walker v. AT&T Techs., 995 F.2d 846, 850 (8th Cir. 1993)). At the same time, by imposing a higher burden of production on an employer once a prima facie showing of discrimination has been made, the analysis recognizes that the production of direct evidence of unlawful discrimination destroys “the same presumption of good faith concerning its employment decisions which is accorded employers facing only circumstantial evidence of discrimination.” Price Waterhouse, supra, 490 U.S. at 265-66, 109 S. Ct. at 1799, 104 L. Ed. 2d at 297-98 (O'Connor, J., concurring).
The McDonnell Douglas standard is a three-stage process, the first stage of which requires the plaintiff to prove, by a preponderance of the evidence, the four elements of a prima facie case of discrimination. McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677. A prima facie cause of action under the LAD is established when
[t]he plaintiff [] demonstrate[s] by a preponderance of the evidence that he or she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications.
[Erickson, supra, 117 N.J. at 550 (brackets
in original)(quoting Andersen, supra, 89 N.J.
at 492).]
Establishment of a prima facie case gives rise to a
presumption that the employer unlawfully discriminated against
the employee. See also Texas Dep't of Community Affairs v.
Burdine,
450 U.S. 248, 253,
101 S. Ct. 1089, 1094,
67 L. Ed 2d
207, 215 (1981) (recognizing that plaintiff's burden in
establishing a prima facie case “is not onerous”); Murray, supra,
311 N.J. Super. at 172 (noting that because prima facie case is
easily made out, existence of prima facie case is rarely focus of
ultimate disagreement in employment discrimination case). In
order to rebut the presumption, the employer in the second stage
of the process must come forward with admissible evidence of a
legitimate, non-discriminatory reason for its rejection of the
employee. Burdine, supra, 450 U.S. at 254, 101 S. Ct. at 1094,
67 L. Ed.
2d at 216; Goodman v. London Metals Exch., Inc.,
86 N.J. 19, 31 (1981).
Where the employer produces such evidence, the presumption
of discrimination disappears. St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 507-08,
113 S. Ct. 2742, 2747,
125 L. Ed.2d 407,
416 (1993). In the third and final stage of the process the
burden of production then shifts back to the employee, who has
“the opportunity to prove by a preponderance of the evidence that
the legitimate nondiscriminatory reason articulated by the
defendant was not the true reason for the employment decision but
was merely a pretext for discrimination.” Andersen, supra, 89
N.J. at 493 (citation omitted). An employee may meet this burden
either by persuading the court “directly 'that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of
credence.'” Murray, supra, 311 N.J. Super. at 173 (quoting
Burdine, supra, 450 U.S. at 256, 101 S. Ct. at 1095, 67 L. Ed.
2d
at 217).
Although the burden of production shifts throughout the
process, the employee at all phases retains the burden of proof
that the adverse employment action was caused by purposeful or
intentional discrimination. Burdine, supra, 450 U.S. at 256, 101
S. Ct. at 1095, 67 L. Ed.
2d at 217. In meeting that burden, the
“plaintiff need not prove that age was the sole or exclusive
consideration” in the determination to discharge him; rather, he
need only show “by a preponderance of the evidence that it made a
difference” in that decision. Murray, supra, 311 N.J. Super. at
174 (quoting Turner v. Schering-Plough Corp.,
901 F.2d 335, 342
(3d Cir. 1990)).
The specific holding in McDonnell Douglas applied to racial
minorities in the context of a claim for failure to hire. Thus,
the criteria of a prima facie showing under McDonnell Douglas
provide “only a general framework for analyzing unlawful
discrimination claims and must be modified where appropriate” in
order to conform the test to differing factual contexts.
Erickson, supra, 117 N.J. at 550 (citing Clowes v. Terminix
Int'l, Inc.,
109 N.J. 575, 597 (1988)); see also McDonnell
Douglas, supra, 411 U.S. at 802 n.13, 93 S. Ct. at 1824 n.13, 36
L. Ed.
2d at 677-78 n.13 (recognizing that specification of prima
facie proof not necessarily applicable in every respect to
differing factual situations); accord Peper, supra, 77 N.J. at
83. Although this Court has recognized a need to harmonize the
LAD with Title VII in order to assure a reasonable degree of
symmetry and uniformity in the law, “we have not hesitated to
depart from the McDonnell Douglas methodology if a rigid
application of its standards is inappropriate under the
circumstances.” Grigoletti, supra, 118 N.J. at 107.
Where as here, for example, the employee is alleging a
discriminatory discharge under the LAD, the third element of a
prima facie case has been modified to permit an employee to
recover on proof of discharge rather than requiring proof of
failure to hire. Erickson, supra, 117 N.J. at 551 (citing
Clowes, supra, 109 N.J. at 597).
Similarly, in the age-discrimination context, the fourth
element of the McDonnell Douglas test has been altered to
eliminate the requirement that the plaintiff be replaced with
someone outside the protected class:
The fact that one person in the protected
class has lost out to another person in the
protected class is [] irrelevant, so long as
he has lost out because of his age. Or to
put the point more concretely, there can be
no greater inference of age discrimination
(as opposed to “40 or over” discrimination)
when a 40 year-old is replaced by a 39 year-old than when a 56 year-old is replaced by a
40 year-old. Because it lacks probative
value, the fact that an ADEA plaintiff was
replaced by someone outside the protected
class is not a proper element of the
McDonnell Douglas prima facie case.
[O'Connor v. Consolidated Coin Caterers
Corp.,
517 U.S. 308, 311,
116 S. Ct. 1307,
1310,
134 L. Ed.2d 433, 438 (1996).]
See also McCorstin v. United States Steel Corp.,
621 F.2d 749,
754 (5th Cir. 1980) (rejecting “mechanistic application” of
fourth McDonnell Douglas element in the context of “subtle
discrimination” practices typical of age discrimination, noting
that because of the value of experience, “[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 fourth element of a prima
facie case in an age-discrimination case properly focuses not on
whether the replacement is a member of the protected class but on
“whether the plaintiff has established a logical reason to
believe that the decision rests on a legally forbidden ground.”
Murphy v. Milwaukee Area Technical College,
976 F. Supp. 1212,
1217 (E.D. Wis. 1997) (citation omitted). Thus, under the LAD,
which specifies no qualifying age, courts have modified the
fourth element to require a showing that the plaintiff was
replaced with “a candidate sufficiently younger to permit an
inference of age discrimination.” Kelly v. Bally's Grand, Inc.,
285 N.J. Super. 422, 429 (App. Div. 1995) (quoting Waldron,
supra, 849 F. Supp. at 1001).
In this case, the primary dispute is whether Sisler has
satisfied the first element of a prima facie case by showing that
he is a member of a protected class. As Bergen Bank points out,
if everyone, regardless of age, is in the protected class, proof
of the first element of the McDonnell Douglas test would fail to
raise an inference of age discrimination. This Court in
Erickson, supra, also recognized that a literal application of
the McDonnell Douglas standard, insofar as it requires proof of
membership in a protected class, would consistently fail to raise
an inference of discrimination against a majority plaintiff. For
that reason, in Erickson we found it necessary to modify the
first element of the test in order to accommodate a claim of
reverse gender-based discrimination. 117 N.J. at 551.
In Erickson, we noted that the rationale underlying the
first element of a prima facie case “reflects '[c]ongressional
efforts to address this nation's history of discrimination
against racial minorities, a legacy of racism so entrenched that
we presume acts, otherwise unexplained, embody its effect.”
Ibid. (citation omitted). The presumption of discrimination
arising solely from a plaintiff's membership in a historically
disfavored group is not necessarily justified when the plaintiff
is a member of the majority. Murphy, supra, 976 F. Supp. at 1216
(citing Livingston v. Roadway Express, Inc.,
802 F.2d 1250, 1252
(10th Cir. 1986)). Therefore, under such circumstances courts
have modified the first element of a prima facie case to require
a showing of “background circumstances support[ing] the suspicion
that the defendant is the unusual employer who discriminates
against the majority.” Erickson, supra, 117 N.J. at 551
(citations omitted); see also Murphy, supra, 976 F. Supp. at 1216
(collecting authorities in accord); cf. Rivera v. Trump Plaza
Hotel & Casino,
305 N.J. Super. 596, 604 (App. Div. 1997)
(rejecting claim that employer's appearance policy mandating a
specific hair length and style for men but not women constituted
sufficient “background circumstances” to raise inference of
gender-based reverse discrimination).
A showing of “background circumstances” suggesting an
unusual discriminatory environment is the functional equivalent
of and “substitutes for the minority plaintiff's burden to show
that he is a member of a racial minority; both are criteria for
determining when the employer's conduct raises an 'inference of
discrimination.'” Harding v. Gray,
9 F.3d 150, 153 (D.C. Cir.
1993) (citation omitted). An employee can demonstrate
“background circumstances” sufficient to raise an inference of
discrimination by establishing either that the plaintiff was
better qualified for the position than the minority candidate
selected or that the defendant had some reason or inclination to
discriminate against the majority class. Murphy, supra, 976 F.
Supp. at 1217.
A
Our examination of N.J.S.A. 10:5-4 and -12(a) reveals no evidence of a legislative intent to exclude younger workers from the LAD's anti-age-discrimination protection. Together, N.J.S.A. 10:5-4 and -12(a) protect “[a]ll persons” from employment discrimination on the basis of age. Neither section, on its face, specifies a qualifying age at which the act's protections vest. Moreover, reading the act in its entirety, it is clear that the LAD is not entirely silent with respect to the age of persons entitled to protection under the state anti-discrimination laws. Specifically, N.J.S.A. 10:5-2.1 provides that “nothing in this act . . . shall be construed . . . to require the employment of any person under the age of 18.” That language, fairly read, indicates a clear legislative intent to protect workers over the age of eighteen. That same section carves out an exception to the prohibition of age discrimination against persons eighteen and over only in permitting an employer to establish and maintain reasonable apprenticeship requirements based on a reasonable minimum age. If workers over the age of eighteen were unprotected by the LAD, that exception would be superfluous.
Related state anti-discrimination legislation further supports the conclusion that the LAD protects against age discrimination directed at young workers. In enacting the Employment in Public Service Law, the Legislature explicitly limited the “age” protected class in the public employment sector to persons over forty. See N.J.S.A. 10:3-1. Moreover, in 1985 the Legislature added an age ceiling to the LAD, thus conforming the statute to the ADEA's maximum age limitations by providing that “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age. . . .” N.J.S.A. 10:5-12(a), as amended by L. 1985, c. 73, § 3a. Those enactments strongly support an inference that the Legislature has long been aware of its option to align state law with the federal model by limiting the protected “age” class to older workers, but thus far has simply chosen not to so act.
In deciding that the LAD's protections extend to young workers, we are constrained by the principle that the state anti-discrimination laws, as social remedial legislation, are deserving of a liberal construction. Andersen, supra, 89 N.J. at 495. In that connection, “this Court has been scrupulous in its insistence that the Law Against Discrimination be applied to the full extent of its facial coverage.” Peper, supra, 77 N.J. at 68. We also find that a broad construction of the statute is entirely consistent with the underlying purpose of anti-discrimination laws “to discourage the use of categories in employment decisions which ignore the individual characteristics of particular applicants.” Ogden, supra, 682 P. 2d at 810. Thus, we find it entirely consistent with the underlying purposes of the LAD to infer that the Legislature would have intended to protect, for example, a twenty-three-year-old schoolteacher who, despite her outstanding performance in the classroom, was discharged by a local school board because they believed she was too young to teach. Moreover, if we have mistakenly construed the legislative intent, the Legislature remains free to amend the LAD to specify a minimum qualifying age for the law's protection.
1.
Because Sisler is not a member of a historically disadvantaged class, we affirm the Appellate Division's holding that, in satisfying his prima facie burden under the McDonnell Douglas fo