Disability Discrimination

COVID-19 AS A COVERED DISABILITY UNDER NEW JERSEY LAW

Published on: August 31, 2020 | by Mashel Law, L.L.C.

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 THIRD CIRCUIT MAKES CLEAR THAT BEFORE PROVIDING AN ACCOMMODATION FOR AN EMPLOYEE’S DISABILITY, AN EMPLOYER MUST ENGAGE THE EMPLOYEE IN A GOOD FAITH INTERACTIVE PROCESS TO IDENTIFY AVAILABLE REASONABLE ACCOMMODATIONS

Published on: September 23, 2019 | by Mashel Law, L.L.C.

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 (3^rd 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. https://www.aocd.org/page/PseudofolliculitisB. 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.

NONRESIDENT OUT-OF-STATE WORKERS SEEKING EMPLOYMENT IN NEW JERSEY MAY BE PROTECTED UNDER THE LAW AGAINST DISCRIMINATION

Published on: July 12, 2019 | by Mashel Law, L.L.C.

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.

WORKERS MAY NOT NEED TO SHOW THEY SUFFERED AN ADVERSE EMPLOYMENT ACTION WHEN BRINGING A FAILURE TO ACCOMMODATE DISABILITY DISCRIMINATION CLAIM UNDER NEW JERSEY LAW

Published on: June 20, 2019 | by Mashel Law, L.L.C.

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.

NJ APPELLATE COURT HOLDS PATTERN OF DISCRIMINATORY APPEARANCE-BASED PRACTICES MAY BE SUFFICIENT FOR SEXUAL HARASSMENT HOSTILE WORK ENVIRONMENT CLAIM IN ONGOING “BORGATA BABES” LAWSUIT

Published on: May 24, 2019 | by Mashel Law, L.L.C.

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).

NEW JERSEY’S LAW AGAINST DISCRIMINATION PROTECTS PERSONS INFECTED WITH HIV OR AIDS FROM BEING DENIED MEDICAL TREATMENT

Published on: February 28, 2018 | by Mashel Law, L.L.C.

A person infected with HIV or AIDS cannot be denied medical treatment in a hospital or clinic, nor denied treatment by a medical practice or physical therapy group. HIV or AIDS under New Jersey’s Law Against Discrimination (NJLAD), N.J.S.A., 10:5-1 to 10:5-42, and its accompanying regulations have evolved to provide ever greater levels of protection for the disabled victimized by discrimination. Before a discussion of the law, let’s dispel any misconceptions about how HIV or AIDS is spread. HIV or AIDS is not spread through touch, tears, saliva, or urine. www.webmd.com/hiv-aids/top-10-myths-misconceptions-about-hiv-aids#1. You cannot catch it by: breathing the same air; touching a toilet seat or door knob or handle; drinking from a water fountain; hugging, kissing, or shaking hands; sharing eating utensils; or using exercise equipment at a gym. Id. However, HIV or AIDS can be spread from infected blood, semen, vaginal fluid, or breast milk. Id.

The NJLAD provides in N.J.S.A., 10:5-4: All persons shall have the opportunity to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation without discrimination because of disability, subject only to conditions and limitations applicable alike to all persons. That opportunity is recognized as and declared to be a civil right. It is unlawful discrimination to refuse, withhold, or deny that opportunity, or to discriminate in furnishing it, because of disability. N.J.S.A.,10:5-12(f)(1); N.J.A.C. 13:13-4.3.

The NJLAD forbids “any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof. . . .” N.J.S.A., 10:5-12(f). To prove a claim of unlawful discrimination under the NJLAD, a claimant must show that he or she (1) had a disability; (2) was otherwise qualified to participate in the activity or program at issue; and (3) was denied the benefits of the program or otherwise discriminated against because of his or her disability.

Employer’s Cannot Avoid Liability under New Jersey’s Disability Discrimination Laws by Arbitrarily Dictating What Constitutes An Essential Job Function

Published on: August 21, 2017 | by Mashel Law, L.L.C.

Under the federal American with Disabilities Act (“ADA”), and the New Jersey Law Against Discrimination (“LAD”), a disabled employee is entitled to be reasonably accommodated by their employer so long as to do so does not create an undue hardship for the employer or coworkers. However, for an employee to be entitled to a reasonable accommodation for a disability, the ADA and LAD requires that the disabled employee can perform the essential functions of their job with or without an accommodation. Put differently, an employer is not required to accommodate an employee who cannot perform his or her essential job functions even with an accommodation. Hennessey v. Winslow Township, 368 N.J. Super. 443, 452 (App. Div. 2004), aff’d, 183 N.J. 593 (2005).

What constitutes an “essential function” requires a very fact specific determination. To do so, the U.S. Equal Employment Commission suggests the following factors be considered: (1) the employer’s job descriptions; (2) whether the position exists to perform that function specifically; (3) the experience of employees who actually hold that position; (4) the time spent performing the function; (5) the consequences of not performing the function; (6) whether other employees are available to perform the function, and; (7) the degree of expertise or skill required to perform the function. However,when looking at the job description factor, the New Jersey Supreme Court in Grande v. Saint Clare’s Health Sys., Nos. A-67, 076606, 2017 N.J. LEXIS 746, at *1 (decided July 12, 2017) recently reaffirmed that an employer cannot arbitrarily define which requirements are “essential” job functions.

Maryanne Grande (“Grande”) was a Registered Nurse who suffered repeated injuries while working at Saint Clare’s causing damage to her shoulders and neck. Following her last medical leave, Grande was cleared by her doctor to return to full-duty. However, before permitting her to do so, Saint Clare’s required Grande to undergo and pass a functional capacity evaluation (an FCE). The FCE concluded that Grande was fit to perform medium category work (occasional lift and work up to 50 lbs.) with certain job alterations to avoid prolonged or repetitive neck movements, and required assistance when performing patient transfers or guarding patients or handling loads greater than 50 pounds. Thereafter, Saint Clare’s informed Grande that they were terminating her employment because they felt she had limitations which prevented her from safely doing her job.

NEW JERSEY HIGH COURT HOLDS THAT LAD PLAINTIFF CAN PROVE DISABILITY WITH TREATING PHYSICIAN TESTIMONY.

Published on: May 17, 2016 | by Mashel Law, L.L.C.

Victims of disability discrimination no longer need to shoulder the burden and high expense of retaining a pricey medical expert to come to court to render an opinion establishing their physical, mental and/or emotional disability in question; they can now use their treating doctor for this purpose. So said our New Jersey Supreme Court in a recently decided case entitled Delvecchio v. Township of Bridgewater, — N.J. —, 2016 N.J. LEXIS 335 (2016) where the Court affirmed the reversal of a jury’s verdict of no cause of action against a former dispatcher of the Township of Bridgewater Police Department (the “Bridgewater PD”).

In 2003, Mrs. Delvecchio developed inflammatory bowel syndrome (“IBS”), and began treatment with Dr. Gary Ciambotti (Ciambotti), a gastroenterologist. Dr. Ciambotti wrote to plaintiff’s supervisors and stated that her symptoms were under control as long as she worked regular daytime hours, but would be exacerbated by an assignment to the midnight shift. After repeatedly declining assignments to the midnight shift, Mrs. Delvecchio was asked to resign from her position. She then accepted a lower-paying job as a records clerk for the Township. Plaintiff used more than her allotted sick days, and the Township terminated her employment.

Thereafter, Mrs. Delvecchio filed a New Jersey Law Against Discrimination (the “LAD”) disability discrimination complaint against the Township, Bridgewater PD and individual defendants. She contended, among other claims, that her IBS constituted a disability for purposes of LAD and that defendants failed to provide a reasonable accommodation for that disability when they set the schedule for her work as a police dispatcher. Mrs. Delvecchio disclosed in pretrial discovery that she intended to present the testimony of Dr. Ciambotti to establish his diagnosis of IBS. However, the trial court barred the testimony of Dr. Ciambotti on the grounds that he had not been retained and identified by plaintiff in pretrial discovery as an expert witness and had not prepared an expert report containing his findings. Without the testimony of a physician establishing the nature and extent of her disability, the jury was left with no choice but to conclude that Mrs. Delvecchio had failed to establish that she had a disability preventing her from working midnight shifts.