New Jersey Employment Lawyer Blog
When you need to pursue a discrimination lawsuit in New Jersey, your case needs several things, not the least of which is something called an “adverse employment action.” This is just one of many essential components your case needs to succeed. To make sure you have everything necessary for a positive outcome, be sure that, before you start, you’ve retained a knowledgeable New Jersey employment discrimination lawyer.
Any of a range of actions can be adverse employment actions. It is fairly cut-and-dried that things like terminations, demotions, suspensions without pay, disciplinary “write-ups” or actions, reductions of pay or hours, or negative performance reviews are adverse.
As the recent age and disability discrimination case of one New Jersey woman shows, the array of actions that can qualify as adverse under employment law is not limited only to those listed above.
The plaintiff, K.F., worked for AT&T for three decades, starting in 1986. Along the way, she survived an epilepsy diagnosis, as well as breast cancer.
What she could not survive — on a professional level — was a 2015-16 round of layoffs within her business unit. At AT&T, employees targeted for layoff have the choice of electing immediate termination and severance or remaining with the company during a 60-day window to search for other jobs with the employer.
In January 2016, the employer told K.F., who was 59 years old at the time, that she was among the 267 employees the company had targeted for layoff. The woman searched for jobs and found two: one in New Jersey and one in Texas. Although the out-of-state job was a better fit based on K.F.’s professional experiences, she selected the local job because she was still undergoing chemotherapy treatment.
The following October, she was again targeted for layoff. This time, she was the only one. She did not find a new job within the 60-day window and the company terminated her in late December.
K.F. subsequently sued, alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA) and disability discrimination in violation of the Americans with Disabilities Act (ADA).
In an age or disability discrimination action under federal law, there are several things you must demonstrate. First, you have to establish that you were a member of a group protected by the applicable statute. For an ADEA claim, that means showing that you were age 40+. For an ADA claim, it means showing that you had a legally recognized disability.
Additionally, you have to show that you were qualified for the position you held, that you endured an adverse employment action, and that the adverse employment action occurred because of your age (ADEA case) or disability (ADA case). If your federal age discrimination case is one where you were laid off, you can clear this last proof hurdle by demonstrating that you got laid off while a similarly situated under-40 coworker did not. In a similar kind of disability discrimination case, you can meet this requirement by showing that you were targeted for layoff while a similarly situated person without disabilities was not.
Making Your Continued Employment Conditional = An Adverse Employment Action
The Third Circuit Court of Appeals, in reviewing the federal trial court’s decision, disagreed with the lower court (and the employer) in one very critical area. That issue was the significance of the employer’s notice it gave K.F. in January 2016.
The trial court agreed with the employer that, because the woman was able to secure a new job within the company and continue working for the employer, the January 2016 notice could not qualify as an adverse employment action. The appeals court, whose rulings directly control federal cases in New Jersey, Pennsylvania, and Delaware, said this was not correct.
Regardless of whether or not K.F. succeeded in landing a new job with the employer within 60 days, a notice like the one she got was something that altered the “terms, conditions, and privileges of employment.” The moment she received the notice, her employment became conditional; namely, conditioned upon K.F.’s own ability to land a new in-house job before the 60-day period expired. As the court explained it, the option of finding a new in-house job did not mean the notice “was not an adverse employment action; it means merely that the employee was able to lessen the adversity—and potentially the damages—of the employer’s action.” Regardless of the outcome of the employee’s new job search, the notice was inherently adverse.
Some cases may be very black-and-white. Most are not; instead requiring an ability to parse nuance by using professional experience and in-depth knowledge of the law. Make sure you are as protected as possible when you go to court on a discrimination claim. Get in touch with the skilled New Jersey age discrimination attorneys at Phillips & Associates to put the power of our team on your side. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.