The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 to 634 (the “ADEA”), is the federal law which prohibits employers from discriminating against employees because of their age. 29 U.S.C. § 623(a). In 2009, the Supreme Court of the United States held that in cases brought under the ADEA, “the plaintiff retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177 (2009).
The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (the “NJLAD”), is the state law in New Jersey which prohibits employers from discriminating against employees on the basis of age. N.J.S.A. 10:5-12(a). In contrast to Gross, the New Jersey Supreme Court previously reaffirmed in an age discrimination case brought under the NJLAD that “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.” Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999) (quoting Murray v. Newark Housing Authority, 311 N.J. Super. 163, 174 (Law Div. 1998)). In fact, the New Jersey civil model jury charge guiding NJLAD claims provides that a plaintiff must prove “that a discriminatory reason more likely than not motivated the defendant’s action”. N.J. Civil Model Jury Charge § 2.21(A) (App’d 5/03). The “motivating factor” standard under Sisler and the model jury charge is a less onerous standard of causation for a plaintiff to meet than the “but-for” standard under Gross.
Despite Sisler and the New Jersey civil model jury charge, the United States District Court for the District of New Jersey recently applied the “but-for” standard of causation to a plaintiff’s age discrimination case filed in New Jersey. Braden v. Lockheed Martin Corp., Civ. No. 14-4215, 2017 WL 379427 (D.N.J. Jan. 26, 2017). The plaintiff, Mr. Robert Braden, was fired in 2012 by his employer, Lockheed Martin Corp., and subsequently filed an age discrimination lawsuit under both the ADEA and the NJLAD. Id. at *1. At trial, the parties disputed whether a “but-for” or “motivating factor” charge should be given to the jury. Ibid. The court considered the issue before it as one of first impression: “whether the causation standard for age discrimination is the same under both the ADEA and NJLAD after the Supreme Court’s holding in [Gross].” Ibid. In the end, the District Judge determined:
to give separate instructions to the jury as Plaintiff urges would suggest to the jury there are different standards, when the standards are the same but are expressed or worded differently. Put another way, the separate charges requested by Plaintiff contain distinctions without material differences and would only lead to jury confusion. Accordingly, the Court will instruct the jury on the issue of causation under ADEA and NJLAD using only the “but-for” causation standard.
Id. at *3.
In this author’s opinion, the District Judge’s determination was thoroughly erroneous. There are very “material differences” between the two causation standards. Under the “motivating factor” standard, a jury can determine that the employer-defendant had more than one reason or motivation for its actions; the plaintiff must only prove that his or her age played a role in the decision (i.e. a mixed-motive analysis). The Supreme Court in Gross rejected that the ADEA authorizes such mixed-motive age discrimination claims. Gross, 557 U.S. at 175. The Court specifically pointed out that “[u]nlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.” Id. at 174 (emphasis added). Indeed, under the “but-for” standard, the adverse employment action must have been made solely because of the employee’s age. This is much more difficult to prove.
The New Jersey Supreme Court will have to take up this issue one day and clarify that the NJLAD still authorizes mixed-motive claims of age discrimination despite Gross because the text of the ADEA and the NJLAD are quite distinct. Until then, expect defendant-employers to argue for the Gross/Braden “but for” charge in all age discrimination cases.
It must be noted, however, that despite the District Court’s “but-for” causation charge, the jury still found in favor of Mr. Braden and awarded him $51,040,000 in damages ($50 million in punitive damages).
If you believe you have been subject to age discrimination or harassment, immediately contact the attorneys at The Sattiraju & Tharney, LLP in Princeton, New Jersey at (609) 722-7039 for a free consultation. We fight for workers’ justice under a litany of employee-rights statutes including the NJLAD.