70 is the New 40 – New Jersey Law Against Discrimination Expands Protections to Employees Over the Age of 70
On Tuesday, October 5, 2021, New Jersey Governor Phil Murphy signed legislation that addressed a blind spot in the New Jersey Law Against Discrimination that actually enabled private employers to discriminate against employees on the basis of their age. The New Jersey Law Against Discrimination (“NJLAD”), codified at N.J.S.A. 10:5-1, et seq., which in relevant part provides that “all persons shall have the opportunity to obtain employment without discrimination,” protects private employees in New Jersey against disparate treatment, harassment, discrimination, retaliation, and other unequal employment practices on the basis of certain protected characteristics, including their age.
The aim of this amendment to the NJLAD was to remove provisions in the law that effectively permitted discrimination in employment against employees over the age of 70. Prior to the passage of Assembly Bill A681, Section 11 (ironically) provided that “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age.” N.J.S.A. 10:5-12. Adding insult to injury, private employees forced to retire in violation of Section 11 were entitled to limited relief: “reinstatement with back pay and interest.” In short, the NJLAD enabled private employers to discriminate in their employment practices against employees over the age of 70, and also limited the remedies available to employees forced to retire because of their age.
Recognizing these shortcomings in the law, the New Jersey State Assembly introduced Assembly Bill A681, which expanded the scope of protections afforded to public and private employees over the age of 70 and bridging a gap in the law’s coverage. With this amendment, the NJLAD now places all private employees on an equal playing field regardless of their age.
What does this mean for private employers in New Jersey? First, the amendment repeals from Section 11 the carveout for employees over the age of 70. With this exception now removed, employers may not deny employment or promotion to an employee or group of employees simply because he, she or they are over 70 years of age. In other words, private employers may not refuse to hire, or refuse to promote, an employee because that employee or applicant is over the age of 70. Second, the NJLAD previously limited the legal relief available to private employees forced to retire because of their age. This amendment removes that protective shield and makes available to such aggrieved employees all the remedies afforded under the NJLAD, including attorney fee-shifting, litigation costs, and punitive damages.
The impact of this amendment cannot be overstated. By making just two seemingly minor tweaks to the NJLAD, a long-neglected class of individuals was instantly granted their full rights and protections under the original meaning, spirit, and purpose of the law. While this is a cause for celebration for equal rights, and it clearly is in recognition of the fact that people are living and working longer, there are important legal implications for private employers. Private employers should revisit and, if necessary, restructure existing hiring and promotion practices and procedures, and should eliminate mandatory retirement policies, to comply with the new legislation or potentially face significant liability. Furthermore, while failure to hire claims are notoriously hard to prove, employers should brace for more litigation on this basis and should be prepared to identify legitimate, nondiscriminatory grounds for not hiring or promoting applicants over the age of 70. Simply put, all private employees in the State of New Jersey deserve to be evaluated on their merits and how well they perform their job, and not on the basis of their age, and private employers must adjust their policies, practices and procedures to prevent against this previously permitted form of ageism.