New Jersey has one of the most comprehensive statutes protecting employees against discrimination in the workplace. On October 5, 2021, Governor Murphy signed legislation expanding these protections even further by amending New Jersey’s Law Against Discrimination (“NJLAD”) to prohibit private-sector employers from discriminating against employees over the age of 70. Specifically, the legislation eliminates a provision of the NJLAD that previously permitted employers to refuse to hire or promote workers over the age of 70. It further expands the remedies available to an employee who is forced to retire due to age.
History of the NJLAD
The NJLAD, originally enacted in 1945, prohibits an employer from refusing to hire or employ, fire, or otherwise discriminate against an individual in compensation or other terms, conditions or privileges of employment based on the individual’s protected status. While not included in the original list of protected classes, in 1962 the NJLAD was amended to recognize age as a protected status. In 1985, the NJLAD was amended again to clarify that while employers were prohibited from terminating or demoting employees based on their age, they were nonetheless allowed to “refus[e] to accept employment or to promote any person over 70 years of age.” The 1985 amendment also limited the remedies available to employees forced to retire as a result of age to back pay only. While New Jersey continued to broaden the NJLAD and expand protections to a number of groups over the following years, the limited protections against age discrimination were never modified, thereby placing it on separate, inferior footing to the State’s other protected categories.
Amendments to the NJLAD
On October 5, 2021, New Jersey sought to remedy that contradiction and place age on equal terms with the State’s other recognized protected classes. Sponsors of the change pointed to an aging workforce in support of amending the NJLAD, noting that older individuals are continuing to work either due to a financial need or because they still have the energy, skills and experience to offer the workforce.
The adopted amendments eliminate the provision in the NJLAD allowing employers to refuse to hire or promote an individual for the sole reason that the person is over the age of 70. As a result, New Jersey employees will now be protected from discrimination when seeking initial employment or pursuing job promotions after turning 70 years old. Additionally, the amendments allow victims of age discrimination to obtain all the remedies available under the NJLAD, including compensatory and punitive damages, reinstatement of back pay, attorneys’ fees, and interest.
These amendments to the NJLAD took effect immediately. Therefore, it is critical that employers promptly review their hiring, promotion and retirement policies to ensure compliance with these changes. Moreover, employers must be mindful of these amendments when making any personnel decisions affecting older workers to ensure they are not based on impermissible criteria linked to age.