Failure to Hire or Promote and Employment Discrimination

Michael K. McFadden

In New Jersey an employer cannot fail to hire or promote a person based on their race, national origin, nationality, age,  gender,  civil union status,  religion, or physical disability.  All employment discrimination claims are required to meet the burden of proving the elements of a prima facie case.  The required elements to be successful can differ depending on the specific circumstance and the type of employment discrimination claimed.  

To establish a prima facie case for a failure to hire or promote under the New Jersey Law Against Discrimination, you must show, by a preponderance of the evidence that you, (1) belong to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek applications for persons of the plaintiff's qualifications. (or hired someone with the same or lesser qualifications who was not in the protected status). Bergen Commercial Bank v. Sisler,  157 N.J. 188, 210 (1999);  Anderson v. Exxon Corp., 89 N.J. 483, 492 (1982). Once a prima facie case is established, a presumption of discrimination arises and the burden then shifts to the employer to show a "legitimate, non-discriminatory reason" for its employment action. McDonnell Douglas,  411 U.S. at 802. The plaintiff must then show that this reason is merely a pretext for discrimination. McDonnell Douglas,  411 U.S. at 804.

The initial burden noted above has been referred to as “rather modest,”", Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996)).  The reason for this is the Courts do understand that an employer is not going to admit to its illegal and discriminatory process.   The Courts allow you to establish that the reason provided by the employer is not the true reason for the employment decision by either circumstantial or direct evidence that discrimination was more likely than not a motivating or determinative cause of the failure to hire or promote.  You can also discredit the reasons provided by the employer.

The best method to discredit the reasons given for the failure to promote or hire is to clearly demonstrate that you are more qualified and more experienced than the person who was promoted or hired.  Unlike the employers’ employment decisions, it will be a jury that determines if the facts presented demonstrate a discriminatory action.