On Tuesday, October 5, 2021, Governor Phil Murphy signed legislation expanding state law protection against age discrimination for those employees who are 70 years of age or older. The legislation amends the New Jersey Law Against Discrimination (“NJLAD”) in a several important ways. First, the amendments remove language from the NJLAD that previously permitted employers to forego hiring individuals or offering them promotions if they were 70 or older. As a practical matter, that provision applied only to smaller businesses who were not covered by the federal Age Discrimination in Employment Act (“ADEA”) which contains no such carve out for older workers. Thus, the impact of this change likely will be limited. Second, in a change with similarly narrow effect, workers who are not hired or are denied advancement because they are 70 or older are no longer limited under the NJLAD to filing a claim with the State Attorney General for reinstatement and back pay with interest. Under the amendments, they have the same avenues of redress and may recover the same damages as younger victims of discrimination. Finally, the amendments make it more difficult for public entities and public institutions with tenure-eligible employees to set a mandatory retirement age. Previously, public employers could show that “the retirement age bears a manifest relationship to the employment in question” in order to set a mandatory retirement age for a position. The amendments remove that language. Now, to set a mandatory retirement age, public employers must show that the employee “is unable to adequately perform the person’s duties.”
The sponsors of the legislation reasoned that these amendments were in line with current workforce demographics and the “graying” of the Garden State’s workforce; people generally are working longer, due to financial need and/or because they continue to have the skills, ability and experience to be productive members of the workforce.
Employers, especially smaller employers, should review any mandatory retirement policies or requirements they have in place. For all employers, age should not be a consideration in making hiring or promotion decisions.