Articles Posted in Disability Discrimination

If you have notified your employer of your disability and are then terminated, your employer may be obligated to engage in an interactive dialogue to determine if they can accommodate you even after you are terminated. Put plainly, employers can be held liable for failing to accommodate an employee even if the employer learns of the employee’s accommodation request after the employee is terminated.

Generally, the LAD prohibits employers from subjecting employees, either perceived to be or who are in fact injured, sick, or disabled, to adverse employment actions, because the employee appears less useful than the employer would like them to be. More specifically, LAD requires employers to “make a reasonable accommodation to the limitations of an employee . . . who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” Clarke v. Atl. City Bd. of Educ., No. A-5344-07T4, 2010 N.J. Super. Unpub. LEXIS 1801, at *11 (App. Div. July 28, 2010).

To establish a prima facie case for failure to accommodate under the LAD, the plaintiff is required to demonstrate that:

On September 24, 2021, Governor Phil Murphy signed into law Legislative Bill A-2617/S-2998 requiring employers with at least 50 employees to provide a hiring preference to an employee injured in a work-related injury who has reached maximum medical improvement and cannot return to the employee’s former position with that employer (hereafter the “WC Reinstatement Law”) Specifically, WC Reinstatement Law’s addition to Title 34 of the New Jersey Workers Compensation Laws (WCL) requires that:

Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.

The reference to “maximum medical improvement” (MMI) is a term that is used when additional treatment will no longer improve the medical condition of the injured worker. Under the WCL a worker injured on the job is entitled to receive all necessary and reasonable medical treatment, prescriptions and hospitalization services related to the work injury are paid by the employer’s insurance carrier or directly by the employer if they are self-insured. The employer has the right to designate the authorized treating physician for all work-related injuries. The worker, in some cases, may be left with either partial permanent injuries or total permanent injuries.  Workers compensation authorized medical treatment, and temporary total disability benefits if applicable, are terminated when the worker is released to return to work in some capacity or if he or she has reached MMI.

An employer’s leaking of an employee’s confidential medical information may give rise to a violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d).  “The purpose of the ADA is to ‘invoke the sweep of Congressional authority . . . in order to address the major areas of discrimination faced day-to-day by people with disabilities,’ . . . .” Carparts Distrib. Ctr. v. Automotive Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994), quoting 42 U.S.C § 12101(b). Congress enacted the statute to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). “Given the remedial purpose underlying the ADA, courts should resolve doubts about such questions in favor of disabled individuals.” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003).

The ADA sets strict rules to maintain the confidentiality of the medical information of job applicants, persons who have been offered jobs, and employees. 42 U.S.C. § 12112(d). The statute also restricts what employers may ask employees and prospective employees about their health, when, and for what purpose that information may be used. Id. With respect to an employee, an employer may not, without limitation, “require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). An employer may make inquiries into an employee’s ability to perform job- related functions. 29 C.F.R. § 1630.14(c). However, an employer’s medical inquiries (and examinations) of employees are unlawful, except to the extent that they are explicitly authorized by the ADA. 29 C.F.R. § 1630.13(b). An employer who oversteps their bounds and makes an overbroad inquiry into an employee’s medical information commits a stand-alone violation of the statute. See Downs v. Massachusetts Bay Transp. Auth, 13 F. Supp. 2d 130, 138 (D. Mass. 1998).

Information garnered in response to an employer’s medical inquiries must be maintained in a separate medical record, which must be treated as confidential, and may be disclosed only to a narrow subset of people. 29 C.F.R. § 1630.14(c)(1). “Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations . . . .” 29 C.F.R. § 1630.14(c)(1)(I). Information obtained as part of an employer’s medical inquiry may not be used for any purpose inconsistent with a legitimate medical inquiry. 29 C.F.R. § 1630.14(c)(2). A violation of the ADA’s confidentiality mandate is also a stand-alone violation of the statute as well. See Stark v. Hartt Transp. Sys., 37 F. Supp. 3d 445, 473 (D. Me. 2014).  See also Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa. 1994) (employer conducted unlawful medical inquiry when it searched the office of an employee whom it knew was sick and discovered a letter indicating the employee had AIDS).

Under New Jersey’s Law Against Discrimination (LAD), when an employee suffers injury due to their employer’s failure to accommodate his or her disability, the employer is liable for discrimination under LAD even when no direct economic harm or other form of adverse employment action was taken by the employer against the employee. Richter v. Oakland Board of Education, 2021 N.J. LEXIS 548, 2021 WL 2324982  (decided June 8, 2021). This is because the wrongful discriminatory act under LAD is the employer’s failure to perform its duty to accommodate an employee’s disability such as the one suffered by schoolteacher Mary Richter.

Plaintiff Mary Richter, a science teacher in the Oakland School District, is a type 1 diabetic and experienced a hypoglycemic event in a classroom, which resulted in severe, life-altering injuries.  At the start of the 2012-2013 school year, Richter’s lunch was scheduled for 1:05 p.m. Richter believed such a late lunch would negatively impact her blood sugar levels and asked the defendant, the principal of the school, if the schedule could be changed to allow her to have lunch earlier to better maintain her diabetic condition.  No change was made. Richter resorted to ingesting glucose tablets to maintain her blood sugar levels. An adjustment was made during the second marking period; however, in the third marking period, Richter was again scheduled for lunch at 1:05 p.m. In that third marking period, Richter suffered a hypoglycemic event in the class period before her scheduled lunch, seizing up, losing consciousness, and striking her head upon her fall, which resulted in extensive bleeding and injury. Richter was not terminated, demoted, or reassigned to another position, but filed an action against the school board under the LAD for failure to accommodate her disability. Prior to filing an action under the LAD, Richter filed a workers’ compensation claim for the work-related injuries and recovered for her medical bills and disability benefits.

Under the LAD, there is no explicit section addressing a reasonable accommodation or claim; however, New Jersey courts have consistently found the LAD requires employers to reasonably accommodate for an employee’s disability. Royster v. NJ State Police, 227 N.J. 482, 499 (2017). An employer is obligated to accommodate for an employee’s disability “unless it would impose an undue hardship on the operation on the business.” Potente, 187 N.J. at 110 (quoting N.J.A.C. 13:13-2.5(b)). To establish a failure-to-accommodate claim under the LAD, a plaintiff must establish that he or she (1) qualifies as an individual with a disability or is perceived as having a disability; (2) is qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) that the defendant failed to reasonably accommodate his or her disabilities. Royster, 227 N.J. at 500.

Although there is no bright-line rule as to what constitutes an adverse employment action, New Jersey state and federal courts have held that actions causing direct economic harm (such as hiring, firing, failing to promote, or adjusting wages or benefits) qualify as adverse actions sufficient to support a prima facie case of employment discrimination. Domino v. Cty. of Essex, 2021 U.S. Dist. LEXIS 26261 (D.N.J. decided February 11, 2021); see also Campbell v. Supreme Court of New Jersey, 2014 U.S. Dist. LEXIS 176647, 2014 WL 7343225, at *6 (D.N.J. Dec. 23, 2014) (citing Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999)). However, this leaves open the question of whether a disabled employee may pursue a failure to reasonably accommodate disability discrimination claim under New Jersey’s Law against Discrimination (LAD) when there has been no direct economic harm adverse employment action taken against the employee. In Richter v. Oakland Bd. Of Educ., 459 N.J. Super. 400 (App. Div. 2019) our Appellate Division answered this question and did so in the affirmative.

Plaintiff Mary Richter was a middle school teacher who suffers from diabetes, alleges she fainted while teaching due to low blood sugar levels when she was unable to eat lunch at an earlier class period and suffered significant and permanent injuries. She contends the accident would not have occurred had the Oakland Board of Education defendants granted her accommodation as required under New Jersey’s LAD to miss cafeteria duty so that she court eat lunch earlier to avoid a decrease in her blood sugar levels. The Defendants claimed to the contrary that they did not require Ms. Richter to work cafeteria duty and because they did not deny her a requested accommodation, they did not violate the LAD.

Because Richter was not fired or reassigned to another position, the motion judge below determined Richter could not establish a prima facie case of adverse employment action, and the motion judge concluded as well that plaintiff’s injuries were not due to defendants’ action but rather due to Richter’s personal decision to continue attending cafeteria rather than eating.  Accordingly, the judge granted defendants’ motion for summary judgment dismissing Richter’s complaint, denied Richter’s cross-motion for summary judgment, and denied reconsideration of the dismissal. Richter appealed.

Federal and state disability discrimination laws do not currently address whether COVID-19 is a covered disability under their respective statutory schemes. However, given the liberality by which New Jersey’s Law Against Discrimination, N.J.S.A., 10:5-1, et. seq. (the “LAD”) is to be applied and considering the recent enactment of a New Jersey law  prohibiting employer’s from taking adverse employment actions against employees who take or request time off due to an infectious disease such as COVID-19, it is likely our New Jersey courts will conclude that contraction and/or documented exposure to COVID-19 will be deemed a covered disability under the LAD.

In Tihara Worthy v. Wellington Estates LLC, et. al., filed in the New Jersey Superior Court on June 15, 2020, Plaintiff Tihara Worthy sued her former employer, Wellington Estates LLC, for wrongful termination, alleging the employer terminated her employment because she had contracted coronavirus disease 2019 (“COVID-19”). Ms. Worthy alleged her termination violated the New Jersey Law Against Discrimination (“LAD”) and common law.  According to her complaint, Ms. Worthy worked as a Certified Medical Assistant in Wellington Estates LLC’s senior living and assisted living community in Spring Lake, New Jersey.  On or about April 19, 2020, she learned she had tested positive for COVID-19.  She immediately notified her employer and commenced a leave of absence.  On or about May 11, 2020, after a month-long leave of absence, Ms. Worthy tested negative for COVID-19 and was given a return-to-work date of May 16, 2020.  However, before she was scheduled to return to work, her employer’s Executive Director telephoned her and told her she was not welcome to return to work because she had contracted COVID-19 and “could have gotten everyone sick.”

The Americans with Disabilities Act (ADA) defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.”  42 U.S.C.S. § 12102. The LAD defines “disability” as “physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness…resulting from anatomical, psychological, physiological, or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.”  N.J.S.A., 10:5-5(q). Hence, as compared to the ADA, the LAD does not contain a requirement that a disability substantially limit a major life activity, as the ADA definition does; thus, an employee who contracts COVID-19 but is not substantially limited in a major life activity may be disabled under the LAD even if found not to be so under the ADA.

The Americans with Disabilities Act of 1990 (“ADA”) protects physically and mentally disabled employees from discrimination. Under the ADA, employers who fail to provide reasonable accommodations to people with disabilities may be found liable for discrimination. See Colwell v. Rite Aid Corp., 602 F.3d 495, 504-05 (3d Cir. 2010). As a rule, courts generally construe the New Jersey Law Against Discrimination (LAD) more liberally than the ADA.  See  Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998) (noting that LAD provides a ‘lower standard’ than ADA because ‘the LAD definition of ‘handicapped’ does not incorporate the requirement that the condition result in a substantial limitation on a major life activity’)

When an employee notifies an employer of their disability and requests accommodations, employers are obligated to engage in a good faith interactive process with them in identifying reasonable accommodations. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319 (3d. Cir. 1999). In fact, according to a recent Third Circuit decision in Lewis v. Univ. of Pa., 2019 U.S. App. LEXIS 23818 (3rd Cir. 2019), an employer cannot arrive at an accommodation for an employee’s disability without first seeking and considering in good faith the employee’s input.

In Lewis, a University of Pennsylvania (“UPenn”) Police Officer suffered from the skin condition Pseudofolliculitis Barbae (“PFB”).  PFB is a common condition of the beard area occurring in up to 60% African American men and other people with curly hair. The problem results when highly curved hairs grow back into the skin causing inflammation and a foreign body reaction; often this takes the form of keloidal scarring.  Because of his PFB condition, Lewis requested UPenn to accommodate his disability by permanently exempting him from their grooming policy requiring him to periodically shave his face and neck.

The Appellate Division recently held that in enacting the New Jersey Law Against Discrimination (NJLAD), the Legislature intended the Act to be construed as broad enough to extend to certain nonresidents who sought employment in the State. Calabotta v. Phibro Animal Health Corp., N.J. Super. LEXIS 100 (June 27, 2019).

Plaintiff David Calabotta, an Illinois employee, sued his New Jersey-based employer Phibro Animal Health Corporation under the NJLAD after his supervisors first failed to consider him for a promotion due to his wife’s battle with breast cancer. His employment was ultimately terminated. Defendant Phibro argued that Illinois law should apply because Calabotta resided in Illinois and worked out of the Illinois office. Id. at 6. However, Calabotta maintained that New Jersey law and the NJLAD should apply because the company headquarters were in Teaneck, the senior executives who made all employment decisions regarding Calabotta’s status were at the New Jersey headquarters, and the promotional position he sought was in New Jersey. Id at 6 and 11.

The court in Calabotta found that, after careful examination of the NJLAD’s text and legislative history that there was no legislative intent to limit LAD to job applications who live in New Jersey or to those who perform all of their employment functions in New Jersey. Generally, the best indicator of the legislative intent behind the enactment of a statute is the statute’s plain language. Calabotta, N.J. Super. at 25 (citing Lippman v. Ethicon, Inc., 222 N.J. 362, 380-81 (2015) and quoting Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011)). However, if a statute’s plain language is ambiguous, then courts look at extrinsic evidence for their analysis, such as legislative history. Parsons v. Mullica Twp. Bd. of Educ., 226 N.J. 297, 308 (2016). In this case, the confusion and ambiguity stemmed from the construction of the NJLAD’s preamble, which uses the word “inhabitant,” despite the fact that “inhabitant” is not used in the rest of the statute. Calabotta, N.J. Super. at 27-28.

Under the New Jersey Law Against Discrimination (LAD) employees may now be able to pursue a failure to accommodate disability discrimination claim even if they do not suffer an adverse employment action for having requested such an accommodation. Put differently, a worker may sue their employer under New Jersey state law for failing to grant their request to reasonably accommodate their disability even if they are not fired, suspended, demoted, had their hours reduced, salary/rate of compensation cut and/or were not subjected to a hostile work environment for having asked their employer to accommodate their disability. In Richter v. Oakland Bd. of Educ., 2019 N.J. Super. LEXIS 84 (App. Div., June 11, 2019), our Appellate Division recently decided that an employee “need not demonstrate an adverse employment action to establish a prima facie case of a failure to accommodate claim under the LAD.” Richter, N.J. Super at 4.

Plaintiff Mary Richter suffered from a hypoglycemic episode, in which her blood sugar dropped too low causing her to have a seizure and faint in front of her students. Richter, N.J. Super. at 7. Richter alleges that as a result of her fall, she had to undergo extraction of her right front tooth and implantation of a dental bridge and bone grafts. Id. She also now suffers from such symptoms as loss of smell, vertigo, dizziness, post-concussion syndrome, severe emotional distress, among others. Id. Prior to this incident, Richter asked the school principal to adjust her schedule to an earlier lunch period. The principal told her that she was needed for cafeteria duty during the earlier lunch period and while the vice principal advised her that she should skip her assigned cafeteria duty to eat lunch earlier, Richter thought she was obligated to work during cafeteria duty because she did not receive permission in writing. Id. at 6. Her late lunch schedule required Richter to consume three or more glucose tablets while teaching to maintain her sugar at stable levels, which ultimately did not work and allegedly caused her to faint. Id. The Superior Court below dismissed Richter’s complaint because it concluded as a matter of law that Richter could not establish an adverse employment action by the BOE. Id. at 3.

To establish an employer’s failure to accommodate, an employee must show “that he or she (1) ‘qualifies as an individual with a disability, or [ ] is perceived as having a disability, as that has been defined by statue’; (2) ‘is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations’; and (3) that defendant ‘failed to reasonably accommodate [his or her] disabilities.’” Royster v. N.J. State Police, 227 N.J. 482, 500 (2017) (citing to Victor v. State, 203 N.J. 383 (2010)). Notably missing from the requirements is a showing of adverse employment action. In Victor, the Court was willing to recognize a disability discrimination claim for failure to accommodate despite the absence of adverse employment action if the employee was able to show that the failure to accommodate forced him or her to “soldier on without reasonable accommodation, making the circumstances so unbearable that it would constitute a hostile employment environment.” Victor, 203 N.J. at 421.

The Appellate Division of the Superior Court of New Jersey published an opinion on May 20, 2019, in which it reversed an Atlantic County decision dismissing a Law Against Discrimination (LAD) claim brought by a group of employees against the Borgata Casino, Hotel, and Spa in Atlantic City.

The employees, who were all hired to work as servers for the “Borgata Babes” program, allege that Borgata engaged in disparate treatment and sexual harassment, among other LAD violations, through its implementation of personal appearance standards which focus primarily on employees’ weights. Enforcement of these personal appearance standards was done through occasional weigh-ins, which ensured employees did not go above a set weight range during their employment. The standards were imposed on women who were pregnant as well as on women who were undergoing medical treatments that caused weight gain.

This week’s decision comes after a decade of litigation in which the claims were initially dismissed by the trial court. Schiavo v. Marina Dist. Dev. Co., LLC, 2013 N.J. Super. Unpub. LEXIS 2093. That initial dismissal was reversed in 2015 when the Appellate Division held that the trial judge erred in finding the record insufficient for a showing of a prima facie claim of sexual harassment hostile work environment discrimination. Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015).

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