Employment Discrimination Based on an Employee’s Youth: An Anniversary

Most of us think that age discrimination in employment claims are limited to plaintiffs who allege discrimination based on their advanced age. But on this date in 1999, the Supreme Court ruled, in Bergen Commercial Bank v. Sisler, 157 N.J. 188 (1999), in favor of an employee who alleged employment discrimination based on his youth. Justice Stein’s opinion for the unanimous Court stated that this was “a case of first impression.”

Michael Sisler, employed at New Era Bank in its merchant credit card department, was recruited to join the plaintiff bank as vice-president of credit card operations. The bank’s President/CEO, Mark Campbell, and its Chairman/founder, Tony Bruno, each dealt with Sisler during the recruitment process. The bank made Sisler an offer, at a generous salary, and Sisler accepted.

Shortly before he was to start work, Sisler had lunch with Bruno. For the first time, Bruno asked Sisler how old he was. When Sisler said that he was 25 years old, Bruno “appeared shocked” and ask Sisler not to reveal his age to anyone else at the bank. Bruno said it would be embarrassing to him if anyone found out how old Sisler was and the responsibilities and salary that he had been given.

Eight days after Sisler began work at the bank, Bruno and Campbell called him into a meeting. They said “they didn’t think this was going to work,” and that Sisler might be terminated. They suggested that Sisler take another position at the bank, perhaps as a consultant. Sisler declined and remained in his position. Four months later, however, the bank terminated his employment and replaced him with a man aged 31. Before his termination, Sisler had not been told of any deficiencies in his job performance.

After Sisler told the bank that he intended to file a lawsuit, the bank filed this case against him, asserting claims of conversion of bank files and other theories. Sisler counterclaimed for age discrimination. The Law Division granted the bank’s motion for summary judgment and dismissed the counterclaim. The Appellate Division reversed, and the Supreme Court granted the bank’s petition for certification.

The bank argued that the Court should follow Burke v. Franklin Tp., 261 N.J. Super. 592 (App. Div. 1993), which had read into the New Jersey Law Against Discrimination (“LAD”) a provision of the federal Age Discrimination in Employment Act (“ADEA”) that limited age discrimination claims to persons at least 40 years of age. The Court, however, agreed with the Appellate Division that differences in the language of the LAD and ADEA meant that the ADEA limitation could not be grafted onto the LAD. After a lengthy discussion, Justice Stein held that Sisler could bring his counterclaim. The Court overruled Burke.

The Court cautioned, however, that Sisler’s claim was one of “reverse discrimination” against youth. As such, Sisler had a “heavy,” “heightened,” and “formidable” burden of proof that Justice Stein elaborated on in detail. But the principle that the young as well as the old may assert employment discrimination claims under the LAD was established by this opinion.

Apart from its holding, this decision contains much of the core of New Jersey employment law. As a result, it has been cited several hundred times for various principles, according to a Lexis search, and it remains viable today.