Recently, the New Jersey Appellate Division upheld a trial court decision finding that a public university professor failed to demonstrate that his employing university engaged in age discrimination under the New Jersey Law Against Discrimination (NJLAD). To the contrary, the university was able to demonstrate a legitimate, non-discriminatory reason for reassigning the professor from his teaching duties to professional development to allow him to become familiar with basic technology.
The NJLAD, N.J.S.A. 10:5-1 et seq., prohibits discrimination or harassment based on protected characteristics including age in employment as well as in other contexts. The NJLAD applies to New Jersey school districts and their employees. Therefore, though the case occurred at a public university, school districts should consider its implications for district employees.
In Zois v. Kean University, the plaintiff (Zois), a university professor in his seventies, was informed by the university provost that there was “no evidence of use of technology in the classroom” in regard to Zois’s teaching, and recommended that Zois participate in technology workshops. Zois failed to meet requirements to upload documents and information electronically, and his email appeared to be inactive or inoperative. Moreover, the university’s agreement with the teachers’ union required faculty to “be accessible to students, faculty, and staff colleagues through whatever normal electronic, telephonic or written modes they find most convenient during the academic year.”
Despite the above-mentioned directive, concerns about the professor’s use of technology and electronic university systems, including email, continued even after he received training from another university staff member. Many of those concerns centered on the fact that Zois was not responsive to student emails. After complaints persisted for several years, Zois was reassigned to professional development and non-teaching assignments so that he could “improve[e] his technology use . . . to [better] serve students.”
Subsequent to his departure, Zois filed a discrimination claim against the university, saying that his reassignment constituted an adverse employment action and impermissible age discrimination, further noting that a younger professor was later hired to replace him.
To make an initial case for discrimination, the plaintiff would have needed to show: (1) that he belonged to a protected class, (2) his job performance met the employer’s “legitimate expectations,” (3) he suffered an adverse employment action, and (4) “others not within the protected class did not suffer similar adverse employment actions.” However, the court found that here, Zois was not able to show that he suffered an adverse employment action even though he was dissatisfied with the reassignment because it was a temporary reassignment and his salary and benefits were unchanged. Additionally, he did not show unequal treatment as compared to other employees.
Furthermore, even if the plaintiff had been able to make an initial case for discrimination, the court held that the university would still be able to overcome this because it articulated a legitimate, non-discriminatory reason for “requiring a modest level of technology usage,” as professors were required to use electronic university systems to input grades and upload information as well as “satisfactorily communicate with students.”
In sum, it appears that an educational institution can require some basic level of technological competency in the classroom. The case was silent about whether the university’s reason would still have been nondiscriminatory had the university not taken numerous steps to provide training to bring the professor up to speed on technology. Similarly, the court did not address whether the standard for technological competency would depend on the age of the students or differ in the K-12 setting.
For more information about this case as well as general protections against unlawful discrimination and/or harassment, board members should consult with their board attorney or call the New Jersey School Boards Association Legal and Labor Relations Department at (609) 278-5254.