By: Donna Russo, Esq.

The New Jersey Law Against Discrimination, NJLAD, prohibits discrimination in employment because of age.  N.J.S.A. 10:5-12 (a).  The statute contains an explicit exception for employees over 70 years of age.  The statute states: “...provided further 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...”.

In Nini v. Mercer County Community College et. als., (A-13/14-09) decided June 1, 2010, the New Jersey Supreme Court addressed the issue of whether on expiration of an existing employee’s contract, the employer can refuse to renew the contract based on the age of the employee.  The Court held that an employer can refuse to hire an employee if he/she is over 70 years of age but that an employer cannot refuse to renew a contract based on the age of the employee.  The Court held that the statutory exception permitting refusal to employ a person over the age of 70 does not apply to a termination of an employee via a non renewal of an employment contract.

Ms. Nini had been employed for 26 years through a series of contracts with the College.  The College refused to renew her contract on the basis that she was over 70 years of age.  The staff of the College had make remarks that she had no right to be working at her age, that people who have been in a job for 25 years lose their effectiveness, that it was time to get rid of old-timers and bring in new blood,   and that it was her last chance to get an early retirement and leave with dignity.   Ms. Nini wanted to continue to work.   She was offered a 6 month extension which she declined.   Ms. Nini filed a complaint alleging age discrimination by the College.  The issue before the Supreme Court was the status of a contract of nonrenewal i.e., is it a termination or a refusal to accept for employment.  The Court commented : “This is not an easy case” and could be viewed one of two ways, a new job applicant or a long term employee. 

Since the statute does not address this issue on its face, the Court examined the legislative intent.  The Court found that the LAD is a remedial statute intended to “eradicate the cancer of discrimination” in our society.  The Court ruled that the language “refusing to accept for employment” is limited to initial hires and declined to expand this exception to workers whose contracts have not been renewed.