Back on October 5th of 2021, New Jersey Governor Phil Murphy signed Assembly Bill No. 681 into law. The bill amends New Jersey’s Law Against Discrimination. The amendment prohibits New Jersey government employers from putting workplace policies in place that force employees over the age of 70 to retire. Here, we will further discuss this extension of age discrimination protection under New Jersey’s Law Against Discrimination.
Age Discrimination Protection Under New Jersey’s Law Against Discrimination
In the past, there were loopholes in New Jersey law that permitted an employer to refuse to hire or promote employees over the age of 70 based solely on their age. State colleges and universities could even have a requirement in place mandating the retirement of tenured employees over the age of 70. The recent amendment of the LAD prevents this.
The amending of the New Jersey Law Against Discrimination (LAD) involved specifically deleting a section that permitted government employers in New Jersey to require the retirement of an employee who has attained a particular age as long as the employer can show that the retirement age bears a direct and manifest relationship to the employment situation. LAD was expressly put in place to prohibit the unlawful employment discrimination against an employee based on the employee’s race, color, national origin, creed, nationality, ancestry, age, sex, familial status, and marital status, among other protected classes. This new amendment to the LAD extends protections specifically to those workers who would otherwise be forced to retire due to their age.
Certain factors must be established in order for a person to prove a prima facie case of age discrimination pursuant to the LAD. A prima facie case means that a legally required rebuttable presumption has been established. In an age discrimination case under the LAD, the plaintiff must be able to demonstrate the following factors to the court:
- The plaintiff employee is a member of a protected group;
- The plaintiff employee was qualified for his employment position;
- Regardless of his qualifications, he was terminated, not hired, or suffered an adverse employment action; and
- The employer passed over the plaintiff employee for someone young enough for it to be viewed as a legitimate case of age discrimination.
The burden of producing sufficient evidence to establish a prima facie case is not very high and it will create an inference of discrimination, otherwise referred to as a rebuttable presumption. This presumption is, as the phrase suggests, rebuttable by the employer. The employer can rebut the presumption by providing a legitimate and nondiscriminatory reason for the employment action.
Should the employer be able to overturn the rebuttable presumption established by the plaintiff’s prima facie case, the burden of proof will shift back to the employee. At this stage, to succeed in bringing the age discrimination action pursuant to the LAD, the plaintiff employee must be able to prove by a preponderance of the evidence that the reason provided by the employer was merely a pretext for discrimination and was not the real reason for the employment action. This would mean that the plaintiff employee would need to show that the employer’s actions were motivated by discriminatory intent.