In a 6-1 decision, the state Supreme Court held that an employer’s refusal to renew the contract of an employee who is over 70, when the basis for that non-renewal is age, is a prohibited discriminatory act under the Law Against Discrimination (LAD).

The decision upholds an earlier ruling by the Appellate Division that longtime dean Rose Nini could pursue a discrimination suit against Mercer County College over its refusal to renew her contract in 2005, when she was 73.

Despite Nini’s 25 consecutive years of employment with the college – including 23 years as Dean of the Division of Corporate and Community Programs – Mercer County College contended that its failure to renew her contract in 2005 was not a termination, but rather a refusal to hire. As such, the college contended in court, its non-renewal of Nini’s contract was protected by a 1985 amendment to the LAD that permits employers to refuse to hire job candidates over age 70.

In a Supreme Court amicus brief supporting Nini, however, the Division on Civil Rights maintained that the non-renewal of Nini’s contract was not protected by the so-called “over-70 exception” to the LAD. Rather, the Division contended, Mercer’s failure to renew Nini’s contract was tantamount to a firing on the basis of age, and was therefore subject to the LAD’s prohibitions on such actions.

“The Supreme Court decision confirms that the LAD’s age discrimination protections will apply even to those who are subject to renewable employment contracts, and that employers cannot avoid compliance with anti-discrimination laws simply by restructuring their relationships with their employees,” said Division on Civil Rights Director Chinh Q. Le.

In upholding the Appellate Division’s earlier ruling, the Supreme Court remanded Nini’s lawsuit for a trial on the merits of the case. However, Nini and Mercer County College have reportedly reached settlement in the matter.

Director Le, however, said the Supreme Court ruling remains significant. He noted that it would have seriously hindered the State’s ability to combat age discrimination in the future if the “overly broad interpretation” of the 1985 LAD amendment put forth by Mercer County College had been accepted by the court.

Nini was a member of the Mercer Community College Board of Trustees before she began working at the college as an executive assistant to the president in 1979. In 1982, she became Dean of the Division of Corporate and Community Programs, a position she held until her final contract expired on June 30, 2005.

Although Nini was provided three ostensibly performance-related reasons for the non-renewal of her contract, she maintained in her lawsuit that the reasons were pretexts, and that the actual reason was her age. Her civil complaint against the college, its board of trustees and President Robert Rose, filed in September 2005, charged age-based discrimination.

The trial court held, however, that state law permitted an employer to decline to renew the employment contract of any employee 70 years or age or older. Nini appealed, arguing that the non-renewal of her employment contract represented an unlawful termination or discharge. The Appellate Division agreed and reversed the trial court.

The college then petitioned the state Supreme Court for certification on the issue of the Appellate panel’s interpretation of the over-70 exception, and certification was granted. The case was argued in November 2009 and decided this past Tuesday, June 1.

Senior Deputy Attorney General Anne Marie Kelly and Assistant Attorney General Andrea M. Silkowitz handled the Nini amicus brief on behalf of the State.

Contact a New Jersey Civil Rights attorney