Both New Jersey law and federal law protect workers from discrimination on the basis of age. Federal law, however, affords protection for those aged 40 or over, while state law bars discrimination based on any age—with some exceptions for those under 18 or over 70.
The Equal Employment Opportunity Commission (EEOC) enforces federal age discrimination law against businesses and private employers which have “20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last).” As for labor unions, the EEOC can enforce the law against those that “either operate a hiring hall or have at least 25 members,” the EEOC says. More information about what entities this federal law covers to can be found here.
New Jersey law applies to all employers and labor unions, no matter the number of employees or members.
Under 18 or Over 70
Under the New Jersey Law Against Discrimination (LAD), an employer can decline to hire someone under 18 years old and over 70 years old because of their age. State law also allows an employer to decline to promote someone over 70 due to their age.
Those over 70 can find protection from these discriminatory actions in federal law. The Age Discrimination in Employment Act prohibits age discrimination against anyone 40 or over, with no exception for those over the age of 70.
Just because there are these exceptions to the rule, this does not mean that employers can freely discriminate against those over 70 or under 18. An employer cannot treat those employees “less favorably than other employees in any of the terms or conditions of [the employees’] current job,” the Attorney General’s Office says.
Under state law, there are three situations in which an employee can be compelled to retire. The New Jersey Attorney General’s Office lists them:
- “An employer can require the retirement of an employee who for the two prior years has been in an executive or high policy-making position, as long as the employee is entitled to a pension package that pays at least $27,000 a year;
- The New Jersey LAD allows for the mandatory retirement at a certain age for people who hold certain positions, such as judges or tenured employees of colleges and universities;
- Some other laws, such as pension laws applicable to certain law enforcement positions, set mandatory retirement ages for those positions.”
Aside from these exceptions, an employer cannot require their employee to retire or set a mandatory retirement age for their business.
New Jersey Law Against Discrimination
Barring the above exceptions, employers cannot discriminate against their employees because of their age under New Jersey law. An employee is not permitted to take the following actions on the basis of the employee’s or the job applicant’s age:
- Refuse to hire the applicant
- Fire the employee
- Force the employee to retire
- Deny the employee’s promotion
- Treat the employee less favorably or differently
- Harass the employee
Age Discrimination in Employment Act
The ADEA is the federal law that prohibits discrimination by employers against those 40 years old or older. The Equal Employment Opportunity Commission, which enforces this statute, describes how the law bars “any form of discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment” on the basis of an employee being age 40 or over.
Just as state law does, federal law also prohibits harassment based on age. Harassment amounts to more than just occasional teasing or an offhand remark: to be illegal, the harassment must “create a hostile or offensive work environment or result in an adverse employment decision” against the victim, the EEOC says.
The EEOC also notes that the harasser does not have to be the employee’s supervisor to constitute illegal harassment. It can be anyone in the workplace or someone from outside the company like a “client or customer.” Moreover, someone age 40 or over can still be the perpetrator of age discrimination—it doesn’t matter that they are in the same protected class as the victim.
A company policy that negatively impacts those over 40 without explicitly discriminating against them might be illegal if it is “not based on a reasonable factor other than age,” the EEOC states.
Example of Age Discrimination
One good example of age discrimination in the workplace occurred when Robert Braden was fired due to a “reduction in force” at his workplace. The National Law Review points out that a “reduction in force”—when the employee is terminated because the position itself is terminated—is how most cases of age discrimination present themselves.
Despite the claim by his employer that there was a “lack of work” for his position which resulted in the termination of his employment, Braden claimed someone else was hired for his position less than a year after he was fired, the National Law Review writes. The Review added that this is a common claim in reduction-in-force age discrimination cases.
Mr. Braden pursued a claim with the EEOC before dropping that claim in order to pursue the matter in federal court. He ended up winning one of the largest sums ever awarded by a jury to a single plaintiff in such a case: $51 million.
Options for Pursuing a Claim
The circumstances of your specific case can guide you on how exactly to pursue a claim of age discrimination. If your place of business has fewer than 15 employees, your only option for pursuing a claim through a state agency would be through the New Jersey Division on Civil Rights. However, if your employer is larger than 15 employees, you have the additional option of filing a charge of discrimination through the EEOC. Lastly, there is the route Mr. Braden followed, which is the judicial route. You can file a lawsuit with the Superior Court of New Jersey. Consulting with an employment attorney will help you sort out your options and decide what is best for you.