By: Ty Hyderally, Esq., Nina Lucibello, Francine Foner, Esq.
The Law Against Discrimination (“LAD”) is New Jersey’s anti-discrimination law which prohibits discrimination and harassment based on actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, and other protected characteristics, including age. The LAD provides protections in many different arenas, such as in employment (including labor unions and employment agencies), housing (including housing providers and realtors), and places of public accommodation (such as businesses, restaurants, schools, etc.).
On October 5, 2021, Governor Murphy signed a new bill (A681) into law that amends the LAD to expand the scope of protection for age discrimination under the LAD. Prior to this amendment, there were some exceptions to the prohibition under the LAD against employers refusing to hire someone because of their age; firing or laying someone off because of their age; or forcing someone to retire because of their age. Before this amendment, public employees who were over the age of 70 could be subject to forced retirement if the employer could show that the employee’s retirement age bore a manifest relationship to the employment in question or that the employee was unable to adequately perform the person’s duties. In addition, before this amendment, private employers could refuse to hire or promote an individual who was over 70 years old.
However, the new law deleted these exceptions from age discrimination under the LAD. Specifically, this bill:
1. Sets a higher standard for government employers in setting a mandatory retirement age;
2. Completely eliminates the provision of the law that allows employers not to hire or promote employees over 70 years old;
3. Removes the provision of the law that allows higher education institutions to require tenured employees to retire at 70 years old; and
4. Increases the remedies available to an employee required to retire due to age to include all remedies available under the LAD, not just reinstatement of employment with backpay.
The new law takes effect immediately. These amendments will provide greater protections to individuals over the age of 70. Notably, older workers are now no longer forced to retire before they are ready. Some people need to work past the age of 70 for financial reason. Moreover, some people want to work past the age of 70 for their own personal fulfillment.
The law is finally catching up to the reality that older workers are still fully capable of working, and it should be their choice when they wish to retire. Additionally, as age can no longer be a factor in hiring, firing, and promoting an employee in New Jersey, this opens an array of opportunities for older workers who still want to advance their careers.
Due to these overdue changes, New Jersey’s older workers should feel free to remain employed and should feel safe knowing that they are protected if they do experience age discrimination in their workplace. Individuals over the age of 70 that experience adverse employment actions based on their age may now bring a valid claim against their employers under the LAD and are entitled to relief.
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