On October 5, 2021, New Jersey Governor Phil Murphy signed A681 (“Law”) into law, strengthening the state’s protections against age discrimination by amending the Law Against Discrimination (LAD) to:
- delete the provision that had allowed employers not to hire or to promote employees over age 70 because of their age;
- delete the provision that permitted higher education institutions to require tenured employees to retire at 70 years old; and
- provide that an employee may seek all remedies permitted by the LAD if required to retire because of age, instead of being limited to filing a complaint with the Attorney General and having relief limited to reinstatement with back pay and interest.
In addition, the Law amends N.J.S.A. 10:3-1 to eliminate a mandatory retirement provision that permitted governmental employers to require retirement when employees attained a particular age, if the employer could show “that the retirement age bears a manifest relationship to the employment in question.” With the amendment, public employers may require retirement upon attainment of a set age only if they can show that the person is “unable to adequately perform the[ir] duties.”
What This Means for Employers:
The Law gives stronger protections to employees over the age of 70 and makes it more difficult for New Jersey public employers and higher education institutions to set mandatory retirement ages. It also enhances the incentives for employees over age 70 to file a claim if they believe they have been terminated, not hired, or passed over for promotion because of age. With the enactment, New Jersey employers must be ever more mindful to ensure their employment decisions are based on qualifications and other legitimate business reasons, and not on stereotyped notions of age.
****************************************************************************************************************
Kamil Gajda, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.