Baby boomers are the second largest population group in the nation and, as of three years ago, 46.2 million boomers were 65 or older. Increased life expectancies and acute economic pressures are just some of the reasons that Americans are staying in the workforce past typical retirement age. Companies now face the challenge of concurrently managing four to five different generations, each with its own identifying characteristics and behaviors. While older workers have more institutional knowledge and certain unique skills and values, they also may have larger salaries and high overhead. For these and other reasons, age discrimination complaints brought before the U.S. Equal Employment Opportunity Commission (EEOC) and in the nation’s courts have skyrocketed in the recent past.

Just three months ago in Camden, New Jersey, a federal jury returned a multimillion dollar verdict that is speculated to be the largest jury award in a single-plaintiff age discrimination case, and five times the amount of prior awards across the country. In January 2017, plaintiff Robert Braden, a former senior project specialist in Lockheed Martin’s Maritime Systems and Sensors Unit at the defense contractor’s Moorestown, New Jersey, location, was given $520,000 for lost wages and benefits, an additional $520,000 for emotional distress, and nearly $50 million in punitive damages. The court order also entitles Braden to file a motion seeking to have Lockheed Martin pay his attorney fees. The jury reportedly deliberated for less than 45 minutes before fixing punitive damages at nearly $50 million based on a determination that the company acted in reckless disregard of discrimination laws. This award sends a clear message that employers cannot push out older workers to make way for new blood.

The litigation styled as Braden v. Lockheed Martin, No. 1:14-cv-04215, was filed in the U.S. District Court for the District of New Jersey in 2014 and arose out of Braden’s July 2012 layoff due to a company-wide reduction in force (RIF). Braden’s claims were based on the federal Age Discrimination in Employment Act (ADEA) and the New Jersey Law Against Discrimination (NJLAD). At the time of his termination, Braden had been employed by Lockheed Martin and its predecessors for 28 years. Braden (aged 66) was the oldest worker in his group and was the only one that Lockheed Martin asked to leave. Two younger employees (aged 42 and 28) who had the same job title as Braden were allowed to stay on. Although dispositive motions were filed, the case proceeded to trial due to questions about why Braden was chosen for the RIF and why company decision-makers offered conflicting and contradictory reasons for his selection.

According to Braden, Lockheed Martin exhibited a culture of age bias because its complicated performance rating system encouraged low marks and minimal compensation adjustments for older workers and high scores and raises for younger employees. Lockheed Martin purportedly allowed age bias to continue because older workers “had nowhere else to go.” Braden claimed to have first-hand knowledge of such bias due to his involvement in the rankings process for other employees for about 16 years. Braden also alleged that the company placed him in a “community of interest” after Braden received a subpar performance review in 2011. The “community of interest” apparently separated him from his peers and had little to nothing to do with the actual work he did.

Braden introduced inflammatory stray remarks evidence concerning Lockheed Martin’s practice of paying older workers less money. Braden claimed a supervisor told him that a higher level Lockheed Martin representative directed the supervisor to give Braden low marks for performance because “[t]his guy [Braden] has been here too long. We need to get rid of him.” Braden also alleged that Lockheed Martin put a new person into his position within a year of Braden’s termination even though lack of available work was a one reason cited for the RIF.

As its defense, Lockheed Martin pointed to two legitimate, non-discriminatory reasons for Braden’s termination: (1) a record of below average performance; and (2) lack of work related to Braden’s skill set. Lockheed Martin stated that human resource representatives, company lawyers and individuals from the in-house equal employment opportunity group completed an adverse impact analysis and implemented special processes and procedures to prevent age discrimination during the RIF. The company also explained that the two younger workers who had the same job title as Braden and who survived the RIF actually had more responsibility and better skills than did Braden; Lockheed Martin just failed to revise those persons’ job descriptions and titles.

This case is also significant because it settles a question of New Jersey law that had “not been put before any court for explicit resolution.” Braden v. Lockheed Martin Corp., 2017 U.S. Dist. LEXIS 10668, No. 14-4215 at *7 n.2 (D.N.J. Jan. 26, 2017). Concerning the ADEA, eight years ago, the United States Supreme Court held a plaintiff must prove “by a preponderance of evidence” that age was the “but for” cause of a defendant’s adverse employment action in order for the defendant to be liable for discriminatory conduct. See Gross v. FBL Fin. Servs., 557 U.S. 167 (2009). Although the ADEA and NJLAD are statutes that courts typically interpret identically, no court had explicitly adopted a “but for” causation standard when applying NJLAD—until now. Before trial, Braden’s counsel argued that a lesser “motivating factor” standard applied to NJLAD claims and contended the jury need only find that age had “played a role” in Lockheed Martin’s decision to layoff Braden. Deciding this issue of first impression, The Honorable Renee Marie Bumb reasoned that cases interpreting NJLAD contained “distinctions without material differences” about causation standards when compared to those interpreting the ADEA and indicated that jury instructions containing different standards for ADEA and NJLAD claims would lead to confusion. Braden v. Lockheed Martin at *8. Judge Bumb ruled that the “but for” causation standard applied to both statutes and that the jury would be instructed accordingly.

Based on the above recounting of evidence presented at trial, it appears the jury did not believe Lockheed Martin’s witnesses and records concerning its legitimate business reasons for selecting Braden for the RIF. Perhaps the jury deemed them irrelevant because the company’s Rule 30(b)(6) witness testified that Braden did not go through the standard RIF process. Maybe the jurors raised their eyebrows at the fact that two younger workers had remained in Braden’s group, and that Braden’s spot there was filled within one year. Whatever the reasons, the groundbreaking verdict comprised mostly of punitive damages underscores the jury’s certainty that Braden would not have been terminated “but for” his age.

With age discrimination suits on the rise, and as companies navigate reductions in force or demotion and termination decisions, management teams should keep in mind the following lessons learned from Braden v. Lockheed Martin:

Decision-making processes and procedures must be objective and uniformly applied to different categories of workers;

Disciplinary actions and performance evaluations should be documented contemporaneous to the action taken or delivery of the evaluation;

Job descriptions and titles should be regularly reviewed and updated to reflect dynamic roles; and

Managers and supervisors should undergo sensitivity and anti-harassment training upon promotion to a supervisory role and, in the event senseless remarks are made, proper actions should be taken.•