Age or race discrimination

Law Lessons from DeMoss v. The Arc of Somerset County, App. Div., No. A-2927-13T4, February 17, 2015:

New Jersey courts rely on the burden-shifting test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677-78 (1973), and its progeny, in assessing a claim based on age or race discrimination. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005); Clowes v. Terminix Int’l, Inc., 109 N.J. 575, 595-96 (1988). Specifically, to establish a prima facie case of age or race discrimination in the termination of employment, a plaintiff must prove: (1) membership in a protected class; (2) actual performance prior to termination; (3) termination from employment; and (4) the employer’s pursuit of someone to perform the same work after the plaintiff’s termination. Zive, supra, 182 N.J. at 450, 454.

Once a prima facie case has been established, the burden of production shifts to the employer to rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for the challenged employment action. Id. at 449. In the final stage, “the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision.” Ibid. In this last respect, to survive a motion for summary judgment, the plaintiff must produce “direct or circumstantial [evidence], from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, 551 (App. Div. 1995) (quoting Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994)). “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.” Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500;

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator and collaborative law practitioner in Westfield, Union County, New Jersey.