In employment law, discrimination isn't always as obvious as a manager saying, "You’re too old for this role." While that kind of blatant bias—known as disparate treatment—still occurs, modern workplace discrimination is often quieter and more systemic. It frequently hides behind "neutral" policies that, on the surface, apply to everyone but in practice fall hardest on older workers. This is known as disparate impact discrimination. For business owners and HR professionals in New Jersey, understanding this nuance is essential for risk management. For employees over 40, it is a critical tool for protecting your career.
To understand your rights or your obligations, you must first distinguish between the two legal theories of discrimination under the federal Age Discrimination in Employment Act (ADEA) and the New Jersey Law Against Discrimination (NJLAD). Disparate Treatment involves intentional discrimination. It occurs when an employer treats an employee differently specifically because of their age. In contrast, Disparate Impact occurs when an employer adopts a policy or practice that is facially neutral—meaning it applies to all employees regardless of age—but has a disproportionate, negative effect on employees aged 40 and older. With Disparate Impact, the "intent" to discriminate is legally irrelevant; it is the result that matters.
Disparate impact claims often stem from standard corporate procedures that seem objective. Common examples include:
Bringing a disparate impact claim is a rigorous process. An employee cannot simply point to a few older colleagues who were fired and claim discrimination. Under the landmark U.S. Supreme Court case Smith v. City of Jackson, 544 U.S. 228 (2005), plaintiffs must identify a specific employment practice rather than a generalized grievance about the workforce's age makeup. The "smoking gun" in these cases is typically statistical evidence. Experts are often brought in to analyze whether the disparity in how a policy affects older versus younger workers is statistically significant or merely a result of chance. Employers are not defenseless. Under the ADEA, an employer can defeat a disparate impact claim by proving the practice was based on a Reasonable Factor Other than Age (RFOA).
While Smith v. City of Jackson established that disparate impact claims are viable under the ADEA, New Jersey courts have long been a leader in broadening protections. In New Jersey, under the NJLAD, the standard is often more stringent. In cases like Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (2005) our courts have navigated the fine line between uniform policy enforcement and discriminatory outcomes, consistently reminding employers that the NJLAD is to be interpreted liberally to eliminate the "cancer of discrimination." Employers must generally demonstrate a legitimate business necessity—showing that the policy is vital to the operation of the business and that no less-discriminatory alternative exists to achieve the same goal.
Age should never be a proxy for competence. In a state as legally rigorous as New Jersey, both sides of the employment relationship must stay vigilant. If you believe a "neutral" company policy has unfairly targeted your career, or if you are an employer seeking to ensure your policies are compliant with the latest NJLAD standards, consulting with experienced counsel is a vital next step. Feel free to contact me at cheyer@scura.com or call me at (973) 696-8391.