On October 5, 2021, Governor Phil Murphy signed Assembly Bill No. 681 (the “Amendment”) into law amending New Jerey’s Law Against Discrimination (LAD) to prohibiting New Jersey government employers from implementing workplace policies mandating employees over the age of 70 to retire. Specifically, the Amendment reads:

Deleting the provision of section 1 of P.L.1938, c.295 (C.10:3- 1) that permits a governmental employer to require retirement when an employee attains a particular age if the employer can show “that the retirement age bears a manifest relationship to the employment in question”.

N.J.S.A. 10:3-1. (emphasis added)

To prove a prima facie case of age discrimination under the LAD, courts apply the following factors: (1) the employee is in a protected group; (2) he was qualified for his position; (3) his employment nevertheless was terminated, or he was not hired; and (4) his employer filled the position with someone sufficiently younger so as to create a legitimate inference of age discrimination. Fischer v. Allied Signal Corp., 974 F. Supp. 797, 1997 U.S. Dist. LEXIS 13988 (D.N.J. 1997). In Geldreich v. American Cyanamid Co., 299 N.J. Super. 478 (App. Div. 1997), the Appellate Division reversed a dismissal of the Plaintiff’s age discrimination claim where the Plaintiff proved a prima facie case. The evidentiary burden at the prima facie stage is “rather modest: it is to demonstrate to the court that plaintiff’s factual scenario is compatible with discriminatory intent–i.e., that discrimination could be a reason for the employer’s action.” Zive v. Stanely Roberts, Inc., 182 N.J. 436, 447 (2005) quoting Marzano v. Computer Sci. Corp., 91 F. 3d. 497, 508 (3d Cir. 1996).

The establishment of a prima facie case creates an inference of discrimination, Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). This inference of discrimination can be rebutted by the employer simply articulating a legitimate, nondiscriminatory reason for the employer’s action. Clowes v. Terminix Intl, Inc., 109 N.J. 575, 596 (1988). The burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision. Ibid. To prove pretext, a plaintiff may not simply show that the employer’s reason was false but must also demonstrate that the employer was motivated by discriminatory intent. Viscik v. Fowler Equip Co., 173 N.J. 1, 14 (2002).

In Geldreich, the Plaintiff worked as a manager of accounting systems for the Defendant. Plaintiff was hired by Defendant at age 23, where he worked for 31 years. Id. at 482. However, Defendant terminated Plaintiff at age 54 despite multiple promotions and excellent performance reviews, to downsize the company. Id. at 490. On appeal, the court found that only the fourth factor was at issue and that Plaintiff sufficiently met the burden because his job functions were assumed by employees all younger than him ages 44 and 48. Id. In fact, Plaintiff was the oldest and only employee in his group to be discharged.  Id. Thus, Plaintiff successfully established a rebuttable presumption of age discrimination, and the case was remanded back to the trial court. Id.

Prior to the recent Amendment to the LAD, loopholes allowed employers to refuse to hire or promote employees for the sole reason that a person was over the age of 70. N.J.S.A. 10:5-12. The recent Amendment now extends additional protection against age discrimination. Additionally, prior to the Amendment of the LAD, state colleges and universities were permitted to require tenured employees over the age of 70 to retire. N.J.S.A. 10:5-2.2. Now, such practices would be considered unlawful, and the amendment would allow such an employee to pursue a wide range of legal remedies, no longer being limited to the singular narrow remedy of seeking back pay with interest under the LAD. N.J.S.A. 10:5-12.1.

Notwithstanding the foregoing, the recent Amendment does not change the mandatory retirement age for police chiefs, state judges, or Supreme Court Justices. N.J.S.A. 10:3-1. Additionally, the amendment only extends further protections to those over the age of 70; employers may still lawfully refuse to hire a person under the age of 18. Id. Employers are also still permitted to advertise for hiring someone of a specific age when age is a “bona fide occupational qualification,” meaning age is essential to the occupation. N.J.S.A. 10:5-12.1. For example, an employer hiring applicants of a particular age group to play a role in a theatrical play to enhance authenticity would be considered permissible.

At Mashel Law LLC, we effectively handle all LAD claims including those involving age discrimination. Do not hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page, for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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