First concrete legislative initiatives against age discrimination in the workplace. Initiative of the US State of New Jersey
by Raffaella Aghemo, Lawyer
Fairness, inclusion and non-discrimination, paradigms of a present and future of broad participation in the economic and social life of the planet, should guide the minds and hearts of those who regulate today’s society. Although this statement may sound utopian to many, every now and then there are signs of a ‘better’ future for all. And where better to start than in the working environment, on which the economy and the future of every society is based?
New Jersey Governor Phil Murphy has signed into law a bill that amends the state’s workplace bias statute, expanding protections against age discrimination. This Assembly Bill 681, passed a few days ago, on October 5, 2021, primarily repealed the provision in Section 1 of PL1938, c.295 (C.10:3–1) “allowing a government employer to require retirement when an employee reaches a certain age if the employer can show ‘that the retirement age has a manifest relationship to the employment in question’”; and the provision in Section 11 of the “Law Against Discrimination,” PL1945, c.169 (C.10:5–12) which states, “‘nothing contained herein shall be construed to prevent an employer from refusing to accept employment or promote any person over the age of 70’, with the effect of no longer allowing employers to refuse to hire persons solely because they are over the age of 70.”
The removal of the upper age limit is most significant for employers with fewer than 20 employees, who can no longer refuse to hire or promote an individual over the age of 70.
But there are still some justifiable exceptions: in the first case mentioned above, exceptions are made if the employer can prove that the employee is unable to perform his duties properly. Moreover, this amendment does not change the mandatory retirement age for certain public employees, such as state judges.
The grievance procedure has also changed: whereas previously those who were forced to retire could only ask for reinstatement to work and payment of arrears, by submitting a formal request before the Attorney General, now, the new law expands the remedies available to employees, having at their disposal “all the remedies provided by any applicable law”.
As you will understand, this elimination from the New Jersey Law Against Discrimination (NJLAD) of the ability of employers to refuse to hire or promote any person over the age of 70 will create strong precedents and strategic weapons in the hands of attorneys who are ready to defend the interests of employees who are “grounded” by age limits, and will require strong scrutiny of recruiting and employment policies and regulations for companies to review, if necessary, their promotion and hiring criteria to ensure that age is not taken into account when deciding which employees to promote or hire.
It seems that the Governor has declared his intention to further extend the scope of the law in question.
Here is the text of the amendment in question: https://legiscan.com/NJ/text/A681/2020
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Raffaella Aghemo, Lawyer
