Employers may soon be unable to reject an applicant based on elder age, and folks 70 and older may be protected from forced retirement with the signing of a bill that received unanimous approval in the Senate and Assembly in June. The measure, S-397, includes the deletion of a 1938 provision that allows a government employer to require age-specific retirement if the employer can show “that the retirement age bears a manifest relationship to the employment in question” and the deletion of another within the Law Against Discrimination in 1945 that states “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years.”

Senate Majority Leader Loretta Weinberg, D-37th District, and Sen. Shirley Turner, D-15th District, sponsored the bill.

“As in many places around the country, New Jersey’s workforce is aging, and we need to be proactive in protecting those older workers against age discrimination,” Weinberg said. “At the very least we need to bring these outdated laws up to date, in order to grant these valued workers the same protections enjoyed by their younger colleagues.”

“Every worker deserves to be judged on how well they do their job, never on their age,” said AARP New Jersey Advocacy Associate State Director Crystal McDonald in an AARP magazine article published in June. “The reality is that our workforce is getting older, and people are working longer; yet, 3 in 5 older workers report seeing or experiencing age discrimination on the job.”

If signed, the bill would also allow those who experience age discrimination in the workplace in the state to sue for punitive damages, and it would repeal a law that forces tenured professors to retire at age 70.

“I think the goal of this bill that Senator Weinberg really wants to be clear is that applicants and employees should be judged, regardless of their age, on whether or not they can do their job well,” said Sills Cummis Employment and Labor Practice Group Co-Chair Patricia Prezioso. “Seasoning really does bring value. On the other side of the coin, employers need to accomplish the mission of their business. It’s important that employees are valued, but also that they reach the expectations of their job.”

Genova Burns Counsel Brigette Eagan represents employers and said it’s important that anyone who screens job applicants is trained on the law, and that if someone won’t be hired, they need to document why.

“Once you expand the scope and whenever you have an employee protective law, you won’t be surprised to see employees or applicants availing themselves of that law. If an applicant or current employee falls within that group, they will avail themselves of that law,” Eagen said.

Training workers on unconscious bias and actively focusing on diversity and inclusion can protect an employer from discrimination claims in two ways. First, doing so can prevent the discrimination from happening in the first place and, Eagen noted, the presence of such processes can bolster an employer’s defense against frivolous claims.

“If there’s a lawsuit, we can say ‘Employer X embraces these concepts, these are the programs we have to include and engage all, I believe that would be a wonderful defense. But it’s that culture that would reduce any claims, whether it’s this new law or a new law that would come out next year,” she said.

Prezioso noted that the new law highlights the importance of human resources functions by state employers.

“We want to make sure we’re not discriminating against any group, including more mature workers, [and] on the other hand, employers are going to be put in a position of defending claims … that could unfortunately become very expensive and disruptive to defend. The value of a wonderful human resource department and human resource professionals is just incredibly important for a well-functioning business, and that goes for whether it’s the public sector or private sector,” she said.