New Jersey’s Law Against Discrimination (LAD) prohibits employers from unlawfully discriminating against employees based on, among other things, their race, color, national origin, nationality, ancestry, disability, national origin, sex and age. The LAD is also quite broad in its application in comparison to federal protections against discrimination (e.g., the LAD applies to all employers while Title VII of the Civil Rights Act is only applicable to employers with 15 or more employees). On October 5, 2021, Governor Murphy signed legislation providing increased protections for employees 70 years old or older.
Under these amendments, employers are no longer insulated from discrimination claims for not hiring or promoting employees over the age of 70. Furthermore, these amendments also remove a provision that permitted higher education institutions to require tenured employees to retire when they reached the age of 70. In a similar vein, the amendments also broaden the remedies available to an employee who is forced to retire, which was previously limited to reinstatement and back pay. As such, age is now on equal terms with other protected categories under the LAD.
Employers must now be mindful of these changes in regard to personnel actions impacting older employees. Any such personnel decisions must be based on legitimate business reasons that are unrelated to age. Because there will undoubtedly be an increase in age-related complaints and litigation, employers in New Jersey should fully document any personnel-related decisions affecting older employees. In addition, any policies concerning mandatory retirement should be carefully scrutinized in accordance with these amendments.