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Two of New Jersey’s most powerful lobbying forces, the American Association of Retired Persons and the New Jersey Business and Industry Association, are squaring off over a bill that would make it easier to prove employment discrimination, notably age bias. Last Monday, as the Senate Commerce Committee heard testimony on the measure, it became clear that the proponents’ first hurdle is Chairman Gerald Cardinale, R-Bergen, who said there will be no vote until some of the anti-employer provisions are removed. The bill, S-1423, sponsored by Sen. Robert Singer, R-Burlington, would allow plaintiffs to prove discrimination by evidence of the “disparate impact” of a decision to lay off workers or induce them to accept buyout packages or early retirement. A “disparate impact” would occur when such an action appears neutral but actually harms a disproportionate number of members of a category protected by the state’s Law Against Discrimination. The bill also provides that the prevailing party in an employment discrimination case may recover attorneys’ fees and costs. Although the bill applies to all protected categories under the LAD, the first paragraph makes it clear that the measure is geared toward older workers, and, indeed, the AARP’s New Jersey branch is the driving force behind the bill. “The AARP has chosen New Jersey to be a pilot project,” says the local branch’s executive director, West Orange, N.J. sole practitioner Marilyn Askin. “All we’re asking Sen. Cardinale to do is to give the bill a chance.” The bill is designed to protect a work force that is growing older, Askin says. Statistical studies on disparate impact have proven effective in eliminating gender and race discrimination, and Askin says she sees no reason to believe it will not work in reducing age discrimination. But Cardinale says employers who make decisions about layoffs or early retirement offers should be allowed to show they had valid reasons for protecting the financial health of their businesses, without facing discrimination claims. “It goes too far,” Cardinale says of the bill. “Nobody wants to see older people discriminated against, but companies should be allowed to defend themselves if they make valid business decisions.” The Business and Industry Association also wants the bill tempered. “This takes away the key defense,” says the group’s general counsel, Philip Kirschner. For example, he says, a company could be held liable for age discrimination if, after a period of slow sales, it decides that its senior sales staff or managers are to blame. “If you wanted to replace your senior staff you couldn’t because most of them are, in fact, older,” Kirschner says. “The bill imposes a strict liability standard.” Kirschner adds that companies are less likely to offer attractive buyouts or early retirement packages if they can still be sued later for age discrimination. “The purpose of these incentives is to reduce the size of your work force and, yes, the people who usually are offered them are older,” he says. “What’s the point in offering them if you’re still going to get sued?” Askin says that Singer’s bill will not lead to the flood of litigation Kirschner fears. “If an employee signs a knowing waiver, then it can be enforced,” she says. However, the bill imposes heavy restrictions on waivers of the right to sue in exchange for benefits in a buyout or early retirement package. Waivers would have to be written in language understandable to the average person. An employee would have 21 days to respond to the waiver request and must be advised of the right to consult with an attorney before the waiver is signed. A member of a category of workers targeted for job cuts would have 45 days to consider the waiver before signing. Workers could back out of the waiver agreement within seven days of signing it. “It’s a very poorly drafted piece of legislation,” says Steven Suflas, who represents employers. “It doesn’t reflect any understanding of the New Jersey Law Against Discrimination,” which already protects workers from being discriminated against because of their age, he says. Employers have valid business reasons for targeting certain categories of employees in work force cuts and should not have that defense taken from them, says Suflas, a partner at Haddonfield, N.J.’s Archer & Greiner. And, he says, buyouts and early retirement packages are generally aimed at workers who have been with a company for a long time. “You’re not going to offer early retirement packages to employees who are in their 20s,” says Suflas. Neil Mullin, who represents employees, views it differently. “It puts the burden of proof on the defendant to show that there was a legitimate business decision made” to target certain employees in work force reductions, says Mullin, of Montclair, N.J.’s Smith Mullin. “If a company does downsize and a disproportionate number of a certain age group of workers is adversely affected, it should have a judgment against it,” he says, adding that “with statistical evidence in disparate-impact cases, there is a strict standard of proof that has to be met.” It is, he says, a difficult burden to meet. Askin agrees that evidence of disparate impact is hard to prove, especially in age-discrimination class actions, because there normally is a wide range of age groups affected by large-scale job cutbacks. “No lawyer’s going to take a case unless the evidence is there and it’s a winner,” Askin says. Last month, the state’s Commerce Committee recommended passage of another age-discrimination bill, S-281, which would bar anyone under the age of 40 from filing an age-discrimination suit. Sen. Gary Furnari, D-Essex, introduced the bill in response to the state Supreme Court’s ruling in Bergen Commercial Bank v. Sisler , 157 N.J. 188 (1999). There, the Court ruled that the LAD is not limited to protecting older workers and is broad enough to accommodate age-discrimination claims based on youth. The court allowed Michael Sisler to file an age-discrimination claim against his employer, Bergen Commercial Bank, after he was fired. Sisler, who was 25 at the time, alleged that he was fired because his superior thought he was too young for the job for which he was hired, vice president of credit card operations. Furnari says his bill would bring the LAD into compliance with the federal Age Discrimination in Employment Act, which is applicable only to those older than 40 years of age.

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