Employees 70 & Older Gain New Life With Expanded Protections Against Age Discrimination in the Workplace

On October 5, 2021, New Jersey Governor Phil Murphy signed legislation expanding the New Jersey Law Against Discrimination (NJLAD) providing increased protections against age discrimination for workers 70 years of age and older. The new legislation closes loopholes by repealing provisions permitting age discrimination in hiring, promoting, and retirement practices, while increasing available remedies to those facing age discrimination in employment.

AMENDMENTS

While the NJLAD is one of the strongest anti-harassment laws in the country, it may be surprising to some that the NJLAD permitted employers to refuse to accept for employment or to promote any person over 70 years of age, required tenured employees at higher education institutions to retire at 70, and limited available remedies to reinstatement and backpay with interest. The NJLAD previously stated: "[N]othing 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." It also contained the following clause for higher education institutions: "[A]n employee who has attained 70 years of age who is serving under a contract of tenure or similar arrangement providing for tenure at a public or private institution of higher education may, at the option of the institution, be required to retire."

The new amendments expand the scope of eligible individuals pursuing claims under the NJLAD. Now, in addition to filing claims under the federal Age Discrimination in Employment Act (ADEA), employees 70 years of age and older can now pursue claims and damages available under the NJLAD, including compensatory damages, punitive damages, back pay, front pay and attorneys’ fees. In addition, those forced to retire at a certain age were limited to filing a complaint with the state's Attorney General with potential relief limited to reinstatement with back pay and interest, which, is unlike every other form of discrimination under NJLAD.

IMPACT

According to the US Census Bureau, workers aged 65 and older make up 21% of the workforce, and according to the AARP, 3 in 5 older workers report observing or experiencing age discrimination at work. The new legislation passed both legislative houses unanimously, providing older workers with important protections that will help level the playing field for employees. It is anticipated that the amendment will also go a long way in breaking down negative stereotypes and outdated assumptions that workers over a certain again can no longer contribute in a meaningful and productive way in their jobs. The new amendment, however, leaves intact the Police and Firemen’s Retirement System as well as the mandatory retirement age of 70 for Supreme Court Justices and State Judges.

BOTTOM LINE

The changes the NJLAD have immediate impact on employers in New Jersey. It is anticipated that an increase in litigation will result as the expansion of remedies available to employees required to retire due to age, now includes all remedies available under the NJLAD including compensatory damages, punitive damages, and front pay. Thus, employers must update their hiring and promotion policies and train their supervisors and managers to understand that they cannot refuse to accept for employment or to promote any person over 70 years of age. There is no doubt that failure to do so will lead to significant liability. It may also be more difficult for employers to hire and promote younger workers given that they may no longer establish mandatory retirement policies. Thus, documenting that personnel decisions were made for reasons unrelated to age will undoubtedly be an employer’s best defense to these claims.

For more information regarding this decision and best practices to implement effective policies and training to avoid claims under the NJLAD, please contact Dina M. Mastellone, Esq., Chair of the Human Resources Counseling & Compliance Practice Group via email here or Brigette N. Eagan, Esq., Counsel in the Human Resources Counseling & Compliance Practice Group via email here.