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Bergen Commercial Bank v. Sisler

February 24, 1999


The opinion of the court was delivered by: Stein, J.

Argued November 9, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 307 N.J. Super. 333 (1998).

The opinion of the Court was delivered by

This is a case of first impression requiring the Court to decide whether respondent Michael Sisler, twenty-five years old at the time of his discharge, can invoke the anti-age-discrimination provisions of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, as a basis for his claim that he was wrongfully terminated because of his employer's perception that he was too young for the job. Should the Court decide that such a claim is cognizable under the LAD, the Court must also determine the appropriate substantive and procedural framework under which a claim alleging employment discrimination on the basis of youth should be evaluated.


In 1993, respondent Michael Sisler was recruited by petitioner Bergen Commercial Bank (Bergen Bank) to operate its merchant credit-card programs. At the time, Sisler was employed by New Era Bank in its merchant credit-card department and he was not actively seeking employment. During the recruitment process, Sisler was contacted regarding his possible employment by both Mark Campbell, president and chief executive officer of Bergen Bank, and Tony Bruno, the bank's chairman and co-founder. After several meetings, Sisler was offered the position of vice-president of credit-card operations at a salary of $70,000 per year, and he accepted.

Shortly before starting his employment with Bergen Bank, Sisler met Bruno for lunch. During this lunch meeting, Bruno for the first time asked Sisler his age. When Sisler responded that he was twenty-five years old, Bruno allegedly "appeared shocked" and asked Sisler not to tell anyone else his age. Bruno indicated that it "would be embarrassing to [Bruno] if other people in the bank found out how old [Sisler] was and what [he] had been hired for, both [his] responsibilities and [his] salary."

On September 1, 1993, Sisler commenced work with Bergen Bank. Eight days later, Bruno and Campbell called Sisler into Bruno's office for a meeting. According to Sisler, Bruno and Campbell indicated that "they didn't think this was going to work," that "they wanted to make some changes," and that Sisler might be terminated. As an alternative, Bruno and Campbell suggested that Sisler relinquish his position and work for the bank in another capacity, perhaps as a consultant. Sisler reacted to the news with surprise. He was incredulous that they could reach such a negative decision about his abilities after such a short period of employment and without having spoken to him about their dissatisfaction. Sisler told Bruno and Campbell that he felt they had not given him an opportunity to prove himself. He therefore refused an alternative employment arrangement and maintained his vice-president position.

During the course of his brief employment with Bergen Bank, Sisler was never informed by Bruno or Campbell of any deficiencies in his performance. Sisler was nonetheless terminated on January 21, 1994, less than five months after commencing his employment with the bank. The termination followed a meeting during which Bruno and Campbell explained that it simply "wasn't working out." Thereafter the bank replaced Sisler with Kenneth Hardaker, aged thirty-one.

After an unsuccessful attempt to settle his potential age discrimination claim, Sisler's attorney informed the bank that he intended to file a lawsuit. In August 1994, before Sisler's lawsuit could be filed, Bergen Bank filed the instant complaint against Sisler alleging conversion of bank files, breach of duty of loyalty, intentional interference with business relations, and trespass. *fn1 Sisler filed an answer and counterclaim, asserting one count of employment discrimination on the basis of age, in violation of the LAD, and one count of breach of contract.

In February 1996, although interrogatories were outstanding and Sisler had not yet deposed Bruno or Campbell, Bergen Bank filed a motion seeking partial summary judgment on Sisler's LAD counterclaim. In support of its motion, the bank asserted that the LAD's prohibition of age discrimination does not apply to twenty-five-year-old claimants. The trial court granted Bergen Bank's summary judgment motion, holding "there is no doubt of the intent of the legislature" to limit the "age" protected class to persons above forty years of age. Sisler's motion for reconsideration was denied. In February 1997, the parties agreed to dismiss voluntarily and without prejudice all remaining claims, for the purpose of allowing respondent to appeal the trial court's decision that the LAD's protection was limited to persons over the age of forty.

The Appellate Division reversed the dismissal of Sisler's counterclaim. Bergen Commercial Bank v. Sisler, 307 N.J. Super. 333 (1998). Initially, the court found that the LAD does not limit its protection to older workers but more broadly affords protection to any worker, whether old or young, who suffers an adverse employment action on account of age. Id. at 342. In addition, the court found that because older workers form the presumptive protected class under the anti-age-discrimination provisions of the LAD, Sisler's claim that he was fired based on his employer's perception that he was too young for the job is appropriately analyzed on the basis of the "reverse- discrimination" formulation adopted by this Court in Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990). 307 N.J. Super. at 346-47. This Court granted Bergen Bank's petition for certification. 153 N.J. 216 (1998).

The principal issue on appeal is whether the Legislature, in amending the LAD to prohibit age-based employment discrimination, completely eliminated "age" -- whether old or young -- as a permissible factor in employment decisions or whether, alternatively, the Legislature in its proscription intended to protect only the historically disadvantaged class of older workers.



The purpose of the LAD is to ban employment discrimination on the basis of certain enumerated attributes including, at issue here, age. The LAD recognizes the opportunity to obtain employment as a civil right. Fuchilla v. Layman, 109 N.J. 319, 332, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). In support of that right, the "overarching goal" of the LAD, reflecting the clear public policy of this State, "is nothing less than the eradication `of the cancer of discrimination'" in the workplace. Id. at 334 (quoting Jackson v. Concord Co., 54 N.J. 113, 124 (1969)). Initially enacted in 1945, the LAD has since been amended repeatedly "as part of a gradual legislative response directed toward eliminating forms of discrimination not theretofore banned by statute." Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 68 (1978). In 1962 the Legislature amended the LAD to include "age" among the characteristics protected under the statute. L. 1962, c. 37.

Two sections of the LAD prohibit age discrimination. N.J.S.A. 10:5-4 provides in pertinent part:

"All persons shall have the opportunity to obtain employment . . . without discrimination because of . . . age . . ., subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right."

N.J.S.A. 10:5-12(a) in pertinent part provides:

"It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination . . . [f]or an employer, because of the . . . age . . . of any individual . . . to refuse to hire or employ or to bar or to discharge or require to retire . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment . . . .

The determination of whether those provisions protect only older workers from age discrimination is a question of statutory interpretation requiring the Court to construe N.J.S.A. 10:5-4 and -12(a) in a manner consistent with both the LAD's plain language and its underlying purpose."

As a starting point, this Court in "outlining approaches and infusing discrimination claims under the LAD with substantive content" typically has looked to federal cases arising under analogous provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2 (Title VII) and the Age Discrimination in Employment Act, see 29 U.S.C.A. § 623(a) and § 631(a) (ADEA). Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 96-97 (1990); see also Waldron v. SL Indus., Inc., 849 F. Supp. 996, 1000 (D.N.J. 1994) ("Age discrimination claims under the LAD and the ADEA are governed by the same standards and burden of proof structures applicable under Title VII of the Civil Rights Act of 1964. . . ."), rev'd on other grounds, 56 F.3d 491 (3d Cir. 1995); Shaner v. Horizon Bancorp., 116 N.J. 433, 437 (1989) ("[The LAD] standards have been influenced markedly by the experience derived from litigation under federal anti- discrimination statutes."); Giammario v. Trenton Bd. of Educ., 203 N.J. Super. 356, 361 (App. Div.) (holding plaintiffs' LAD claim of age discrimination under disparate impact theory appropriately analyzed by reference to federal cases addressing disparate impact claims arising under "[s]imilar provisions" of the ADEA and Title VII), certif. denied, 102 N.J. 336 (1985), cert. denied, 475 U.S. 1141, 106 S. Ct. 1791, 90 L. Ed. 2d 337 (1986). To the extent the federal standards are "useful and fair," they will be applied in the interest of achieving a degree of uniformity in the discrimination laws. Peper, supra, 77 N.J. at 81.

Consistent with that approach, Bergen Bank urges the Court to adopt the reasoning in Burke v. Township of Franklin, 261 N.J. Super. 592, 601 (App. Div. 1993), in which the Appellate Division held that the plaintiff, thirty-nine years old at the time of his application for a police promotion, did not fall within the LAD's protected "age" class. Relying on the proposition that LAD age discrimination claims "should be `analyzed by examination of federal cases arising under Title VII and the ADEA,'" the Burke panel read the ADEA's "at least 40 years of age" restriction into the LAD. Id. at 601-02 (quoting Giammario, supra, 203 N.J. Super. at 361); cf. Fischer v. Allied Signal Corp., 974 F. Supp. 797, 805 (D.N.J. 1997) (predicting New Jersey would incorporate ADEA "over-forty" age specification into LAD).

In this case, however, the Appellate Division disagreed with the holding in Burke, citing differences between the pertinent language of the LAD and that of the ADEA. The ADEA provides in pertinent part:

It shall be unlawful for an employer --

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of ...

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