By:  Francine Foner, Esq., Renee Jiang and Ty Hyderally, Esq.

New Jersey employees facing age discrimination may soon be on more equal footing with employees facing other types of discrimination protected by the New Jersey Law Against Discrimination.  Bill S397/A681, which passed the State Assembly on March 25, 2021, is designed to expand the scope of age discrimination under the LAD by deleting certain provisions which restricted the protections and remedies available in age discrimination cases.  On June 10, 2021, the Senate Labor Committee approved the bill.  Employee advocates and groups such as AARP are urging Governor Murphy will sign the measure into law. (https://local.aarp.org/news/aarp-new-jersey-applauds-nj-legislature-for-passing-s397a681-to-protect-older-workers-nj-2021-06-21.html).

The bill amends the LAD to delete the language in the LAD that states: “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years.”  Thus, employers may no longer refuse to hire, promote or terminate an employee based solely upon their being older than 70 years.  However, the bill does not change the New Jersey constitutional requirement that judges are required to retire at age 70.  But it does repeal the section of the LAD which permitted institutions of higher education to require tenured employees to retire at the age of 70 years.

The bill also deletes language in the LAD that permits governmental employers to force an employee to retire if the employer can show that the person’s retirement age “bears a manifest relationship to the employment in question.”  As amended, the LAD provides that a governmental employer can require that an employee retire at a particular age, only if the employer can show that the employee is “unable to adequately perform the person’s duties.”

The new law also enhances the remedies available to employees who have been unlawfully compelled to retire based upon their age.  Previously, relief for having been required to retire based upon one’s age was limited to filing a complaint with the Attorney General and relief was limited to reinstatement with back pay and interest.  As amended, older employees required to retire based upon their age, other than certain exceptions, can seek relief with the Attorney General, or can opt to avail themselves of all of the remedies provided by any applicable law.

The record-breaking unemployment caused by the pandemic exacerbated the challenges for older, experienced workers and has made it even more difficult for older employees to keep and find jobs.  If enacted, this new law will provide greater protections against discrimination and broader remedies for older workers.

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