(Editor’s note: This is an edited excerpt from an article written by Beth P. Zoller in the latest edition of the Labor and Employment Law Quarterly. NJSBA section members can read the full article and issue here [login required].)
Gov. Phil Murphy recently signed Bill A681 into law, amending the New Jersey Law Against Discrimination’s age discrimination prohibitions and expanding protections for older workers. The amendments took immediate effect.
Although the NJ LAD long prohibited discrimination based on age, these protections were limited, and the law essentially permitted certain employment decisions that negatively impacted older workers.
Specifically, the amended law repealed Section 11 of the NJ LAD, which enabled employers to refuse to employ or promote individuals over 70 years of age. Repealing this provision expands employment opportunities to individuals aged 70 and older, making clear that age can no longer be used as a factor in the hiring or promotion process.
The amendment also revised Section 5 of the NJ LAD, which previously limited the remedies available for age discrimination victims when they claimed they were unlawfully required to retire. Prior to the amendment, individuals claiming age discrimination were required to file a complaint with the Attorney General and were limited in potential relief to reinstatement with back pay and interest.
The revised provision states that “in a claim of unlawfully being required to retire because of age, an employee has available all of the remedies provided by any applicable law.” Thus, employers who engage in age discrimination face greater exposure and risk through expanded remedies such as front pay, emotional distress damages, punitive damages, and attorneys' fees.
The amendment also eliminated the statutory provision permitting government employers to force mandatory retirement at a certain age based upon a showing “that the retirement age bears a manifest relationship to the employment in question.” Now, government employers must continue providing employment opportunities to older workers if they are able to perform their official duties and responsibilities.
Lastly, the amendment also impacted age discrimination at higher education institutions, as it repealed Section 4 of the NJ LAD, which permitted such entities to force retirement at age 70. The amendment thus prohibits mandatory retirement policies based on age at higher education institutions. However, the new law does not alter the mandatory requirement age of 70 for Supreme Court Justices and state judges as well as police and fire department members.
Based on the amended law, employers must tread even more carefully regarding employment decisions, making sure they do not deny employment opportunities to qualified older workers. Further, employers should review and revise their policies, practices, and procedures with respect to hiring, promotion, and retirement to ensure that age is not a factor in employment decisions, consistent with the amended statute.