The New Jersey Law Against Discrimination
New Jersey employment law has long been at the forefront of prohibiting discrimination. Indeed, the Legislature adopted New Jersey’s Law Against Discrimination in 1945, long before the Federal Civil Rights Act of 1964 first banned employment discrimination on the basis of race, and even before the President Harry Truman’s Executive Order desegregating the Armed Forces in 1948. The Law Against Discrimination has been amended many times since then to expand the protections against discrimination in employment, and decisions by New Jersey courts have interpreted the Law to provide much broader protections than those provided by similar Federal statutes such as the Federal Age Discrimination in Employment Act (known as the “ADEA”). However, the Law Against Discrimination is not without its flaws. The New Jersey Legislature acted in 2021 to fix one of these flaws by strengthening the protections against age discrimination.
Prior Loopholes in Age Discrimination Protections
New Jersey’s Law Against Discrimination prohibits discrimination in employment, whether in terms of hiring, firing, demoting, promoting, pay, or other terms and conditions of employment, on the basis of “race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer….” However, the Law Against Discrimination expressly allowed New Jersey State, county and local employers to impose a mandatory retirement age if the employer could show that “the retirement age bears a manifest relationship to the employment in question….” Additionally, the New Jersey Law Against Discrimination allowed any employer to refuse to hire or promote anyone over 70 years of age.
2021 Revisions Strengthening Protections Against Age Discrimination
This is no longer the case. In 2021 the New Jersey Legislature amended the Law Against Discrimination to expressly eliminate age based retirement requirements. It also eliminated the provision that allowed employers to discriminate against employees and applicants who were 70 years old or older.
Certain exceptions apply to these revisions. Mandatory retirement ages are still allowed – and are still in force – for New Jersey Supreme Court justices, New Jersey Superior Court judges (including judges of the Appellate Division of the Superior Court), New Jersey Tax Court judges, and judges of the New Jersey Division of Workers’ Compensation. Likewise excluded are New Jersey State Police officers; State, county and municipal law enforcement officers; and members of State, county and municipal fire departments. Additionally, government employers cannot be held liable for age discrimination unless the employee or candidate is at least 40 years old at the time of the employer’s action.
The Bottom Line
Many government employers did, in fact, have mandatory retirement ages. This effectively allowed State and local governments to legally discriminate because of age, and deprived the public of highly competent and experienced public servants. Likewise, public and private employers did discriminate against older workers with impunity. These revisions go a long way – not all the way, but a long way – in correcting this defect in the Law Against Discrimination.
Our New Jersey employment attorneys represent State, county and local government and private sector employees in all aspects of New Jersey employment law, including all forms of discrimination, whistleblower retaliation, civil service litigation and appeals, and teacher and administrator tenure appeals. Contact us at (973) 890-0004 or fill out the contact form on this page. We can help.