Date: October 18, 2021Attorney: Brent R. Pohlman

Last week, the Governor of New Jersey signed into law a bill that amended the section of the New Jersey Law Against Discrimination (NJLAD) governing age discrimination.

The legislation eliminated the provision of the NJLAD that permitted employers to refuse to hire job applicants and/or promote employees 70 years of age or older. An employer that refuses to hire a candidate or promote an employee 70 and over because of that individual’s age will be exposed to significant financial liability. While one might believe this amendment will not protect many people, to the contrary, Americans are living and working longer. The 65 and older age group is going to experience the highest rate of workforce growth in the United States through 2024. This means that many employers can expect to see a significant increase in the average age of its workforce.

Most employers do not intentionally discriminate against older employees. However, there can be an implicit bias as it pertains to the ability of older employees to perform in the workplace. These subconscious beliefs can contaminate what would otherwise be an objective and non-discriminatory hiring or promotional decision.

To insulate themselves from potential liability, employers need to adopt, implement, and follow the following practices:

  1. Prepare thorough and complete job descriptions that specifically identify the material qualifications, abilities and skills needed for each position;
  2. Use objective hiring criteria and document the non-discriminatory factors that resulted in hiring one employee over another; and
  3. Conduct regular performance evaluations that objectively measure performance regarding all key job duties and responsibilities.

Implementing these practices will help ensure that hiring and promotional decisions are based upon objective and non-discriminatory reasons.

The Mandelbaum Barrett PC Labor and Employment Department can assist employers of all sizes in developing and implementing job descriptions, hiring criteria, and performance evaluations. If you have any questions about this or any other labor and employment issues, please do not hesitate to contact Brent R. Pohlman, Esq. at