“Over 70 Exception” to the NJLAD Does Not Extend to Renewal of Existing Employees’ Employment Contracts

Nini v. Mercer Cty. Community College, 2009 WL 1077077 (App. Div., April 2009) – The plaintiff was a 73-year-old Dean who had been employed by the College for more than 25 years, through a series of contracts. Approximately one year before her latest contract was to expire, she began to experience comments and jokes about “age and incompetence and dead wood,” and the need to bring in “new blood.” Then, in the summer of 2004, she received notice that her contract would not be renewed beyond June 30, 2005, despite the fact that she had never been advised of any performance deficiencies. The plaintiff sued alleging age discrimination under the NJLAD.

The defendant relied upon the exception contained in N.J.S.A. 10:5-12a, which excludes from the definition of unlawful age discrimination “refusing to accept for employment or [promoting] any person over 70 years of age.” The lower court had found the exception applied and awarded summary judgment to the College, even though it agreed that if the exception were not present, factual issues existed that could result in a verdict in the plaintiff’s favor.

The Appellate Division reversed and remanded the matter, holding that “[t]he plain meaning of refusal to accept for employment is refusal to hire. . . . [Therefore N.J.S.A. 10:5-12a] should not be interpreted to equate contract nonrenewals with a new hire”; rather, it “should be interpreted to equate a contract nonrenewal with a termination,” and thus an age-based nonrenewal is barred.

Note: This article was published in the May 2009 issue of the New Jersey eAuthority.