New Jersey Expands Protections for Older Workers

On 5 October 2021, the Governor of New Jersey signed into law amendments to the New Jersey Law Against Discrimination that significantly increase older workers’ ability to bring age discrimination claims.

While the New Jersey Law Against Discrimination (NJLAD) has always prohibited age-based discrimination in employment, the new amendments introduced this month create a new private right of action for claims of forced retirement (where employees are required to leave employment at a set age) and eliminate a “safe harbour” provision that limited damages and gave small businesses more flexibility to manage their workforces.

Prior to the amendments, NJLAD provided no private right of action for forced retirement claims. Instead, employees were only permitted to bring forced retirement claims by submitting a complaint to the Office of the Attorney General. Following the amendments, employees may now either bring standalone forced retirement lawsuits, or include forced retirement causes of action with other discrimination claims under NJLAD. This portion of the amendments is likely to increase claims brought against businesses significantly, both in the number of age discrimination lawsuits and the scope of other discrimination claims.

Prior to the amendments, employees who were successful on a claim of discriminatory forced retirement were limited to seeking reinstatement and back pay to cover the period between a forced retirement and reinstatement. The amendments have removed this limitation, and employees who prevail on forced retirement claims may now seek all forms of damages available under NJLAD, which include:

• injunctive relief, including reinstatement;
• back pay;
• compensatory damages for emotional distress;
• punitive damages;
• interest; and
• attorneys’ fees.

Businesses in New Jersey were previously permitted to refuse to hire or promote any applicant or employee over 70 years old. The new amendments remove this limitation from NJLAD, and NJLAD now prohibits discrimination on the basis of age for any applicant or employee age 18 or older.

While the federal Age Discrimination in Employment Act (ADEA) prohibits age discrimination against applicants or employees aged 40 or older, it is only applicable to businesses with 20 or more employees. NJLAD, on the other hand, applies to all businesses, regardless of the number of employees.

Ultimately, the amendments continue a pattern of expanding the scope of NJLAD, while putting additional requirements on New Jersey businesses. To ensure compliance and protect against the increase in lawsuits that is likely to result from these amendments, New Jersey businesses will need to review and overhaul their handbooks, policies, and training. Depending on the circumstances, severance or retirement offers to older employees will need to be more strictly scrutinised to protect against the possibility of NJLAD claims. Employers should expect an increase in the number and scope of NJLAD age discrimination claims, as well as increased severance and retirement costs.