As of October 5, 2021, individuals over 70 years of age are entitled to all of the protections of the New Jersey Law Against Discrimination (“NJLAD”). The relevant legislation, Assembly Bill 681, went into immediate effect upon approval by Governor Murphy.
Until now, NJLAD had permitted private employers to refuse to hire or promote individuals over 70 years for the sole reason of their age without running afoul of its age discrimination protections. Going forward, private employers may not discriminate against applicants and employees in their 70’s and beyond on the basis of age in all terms and conditions of employment.
For public employers, the new legislation removed a carve-out from the age discrimination law that allowed mandatory retirement policies where employers could show that the retirement age bore a “manifest relationship” to the employment at issue.
Now a public employer may require retirement at a particular age only where it can demonstrate that the employee is unable to adequately perform their duties. Similarly, institutions of higher education are no longer permitted to require the retirement of tenured employees at 70 years old. (The new legislation did not remove a narrow exception allowing employers to mandate the retirement of an employee who is in a bona fide executive or high policy-making position for the prior two-year period where the employee is entitled to certain annual retirement benefits amounting to $27,000 or more.)
Finally, an employee who claims they were unlawfully required to retire because of age is no longer limited to filing a complaint with the Attorney General (with relief restricted to reinstatement with back pay and interest), but rather has all of the available remedies under NJLAD, including compensatory, emotional distress and punitive damages and front pay. All New Jersey employers should examine their hiring and promotion policies in light of this new legislation and ensure that any unlawful age-based restrictions are removed.
If you have any questions relating to this new law or would like assistance in reviewing your anti-discrimination or other employment policies, please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.