Employment Law Monitor : Employment Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Wage & Hour, Wrongful Termination

According to the New Jersey Supreme Court in Nini v. Mercer County Community College (decided June 1, 2010), New Jersey employers can refuse to hire or promote individuals who are over 70 years of age on the basis of age, but will violate the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq., if the employer refuses to renew a contract for the same reason. LAD prohibits an employer from refusing to hire, firing or otherwise discriminating against an employee because of a protected category such as age. However, LAD contains what is known as the “over 70 exception”, which provides that, “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age….” N.J.S.A. 10:5-12(a). Thus, a New Jersey employer can refuse to hire or promote an individual who is over 70 years old on the basis of that individual’s age without running afoul of LAD. The Court in Nini, however, held that the “over 70 exception” does not apply to the non-renewal of a contract, likening a non-renewal to a termination, which is unlawful, instead of a refusal to hire. In reaching this holding, the Court relied upon LAD’s remedial nature and strong public policy of eradicating discrimination in the workplace.

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On January 15, 2010, Governor Christie signed into law a bill clarifying the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et seq., as it applies to persons with a developmental disability. This law amends the definition of “disability” in the NJLAD to expressly include “autism spectrum disorders.” N.J.S.A. 10:5-5(q).

In light of the amendment, employers should review their equal opportunity and anti-discrimination policies to ensure those policies comply with the amended law.
 

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The Americans with Disabilities Act (“ADA”) was recently expanded with the enactment of the ADA Amendments Act of 2008 (the “Amendments Act”), which brings the ADA more in line with the already broad New Jersey Law Against Discrimination (“NJLAD”). The Amendments Act modifies the ADA in many significant areas. First, the Amendments Act significantly expands the previous requirement that to qualify as a covered disability, a condition must be an impairment that “substantially limits one or more major life activities.’ By expanding the interpretation of “substantially limits” in favor of finding disability coverage, the Amendments Act will lead to more conditions qualifying as disabilities. Similarly, the Amendments Act expands those “major life activities” that are subject to the disability definition. The Amendments Act also requires that when considering whether or not an individual is disabled, employers and courts may not take account of “the ameliorative effects of remediating measures.” Under previous law, an employer was to consider whether an employee was subject to medication, equipment or other intervention that improved his or her limitation in assessing a disability. The Amendments Act prohibits consideration of such mitigating measures, which again will favor findings of disability coverage.

Along the same lines, the Amendments Act expands the “regarded as” disabled language by providing that an individual will be “regarded as” having a disability if he/she “establishes that [he] has been subject to action prohibited under this act because of an actual physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Accordingly, it will no longer matter whether an employee who is “regarded as” having an impairment actually has the limitation. Finally, the Amendments Act will expand coverage for impairments that are “episodic or in remission” as they are now covered conditions if they would “substantially limit” a “major life activity.” Although the Amendments Act may have little practical effect on New Jersey employers who were already subject to the NJLAD’s broad interpretation of “disability”, employers should take this opportunity to ensure that their policies and practices are in line with both of these laws and that supervisors and managers are trained to recognize employees who may be protected under these important laws.

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