It may be unsettling for some to learn that an employer under some circumstances may lawfully discriminate against an applicant or existing employee due to their disability.  However, to do so the employer must show that even with a reasonable accommodation the employee’s disability precludes their ability to perform their job safely. When an employer takes the position in a case that a worker’s disability precludes their ability to safely perform their job it is asserting a safety-hazard affirmative defense. Under New Jersey’s Law Against Discrimination (LAD), “‘an employer found to have reasonably arrived at an opinion that a job applicant [or existing employee] cannot do the job, either because the applicant [or existing employee] is unqualified or because of a given handicap, cannot be found liable for discrimination against that applicant [or existing employee].’” Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 374 (1988) (quoting Andersen v. Exxon Co., 89 N.J. 483, 497 (1982)). However, “[i]n a physical handicap case, the basic task is not discerning the reason for the discrimination, since that is generally conceded, but rather examining the reasonableness of the decision under the facts.” Andersen, 89 N.J. at 493. It is the employer’s burden to prove that its opinion was reasonably founded.” Id. at 500.

The employer’s burden of proof of establishing a safety-hazard defense is a high one because “[t]he import of the [LAD] is that the handicapped should enjoy equal access to employment, subject only to limits that they cannot overcome.” Jansen, 110 N.J. at 374. Therefore, it must be “clearly shown that a person’s disability would prevent such person from performing a particular job”, otherwise the employer’s decision remains “an unlawful employment practice to deny to an otherwise qualified person with a disability the opportunity to obtain or maintain employment …” N.J.S.A. 10:5-29.1 (emphasis added).

Jansen v. Food Circus Supermarkets, Inc., is the seminal case on the use of the safety-hazard affirmative defense in a disability discrimination case.  In Jansen, the plaintiff was employed by a supermarket as a meat cutter and suffered from a mild form of epilepsy that caused partial, complex seizures associated with loss or impairment of consciousness. Id. at 368. The plaintiff Jansen was not diagnosed as an epileptic until approximately three and one-half (3 ½) years after he began his employment with the defendant as a meat cutter. Id. at 368-69.  Six years later, while Jansen was cutting steaks with [6]  a large steak knife, he suffered a seizure in which he stopped and stood staring, with the knife in his hand.  When Jansen did not respond to inquiries from his supervisor, the supervisor removed the knife from his hand. Id. at 369. Thereafter, while sitting with “an open hand and a clenched fist and hitting his hand over and over again” Jansen stated to a co-employee that “I guess I am going to lose my job … I  [7]  think I am going to go trapping in Oregon. But before I go I am going to take six people with me”. Id. at 370.

Because of these incidents, Jansen was suspended by his employer defendant Food Circus, “pending examination by doctors of our choosing to determine your competency, from a medical standpoint, to return to work.” Id. at 370. Jansen was thereafter examined by both a neurosurgeon and a psychiatrist selected by the defendant-employer. Id. The psychologist found no psychopathology but Jansen impressed him as risky and dangerous to perform the tasks of a meat cutter. Id. at 370-71. The neurosurgeon performed a complete physical and neurological examination concluding that Jansen’s condition was not adequately controlled by medication, and even if medication obtained adequate control, the occupation of butcher and meat cutter entailing access to knives and dangerous instruments is inappropriate and potentially hazardous [9] . Id. at 371. Based upon the two doctors’ reports, the defendant-employer terminated Jansen’s employment. However, within five weeks of his termination, Jansen obtained letters from three physicians, a reviewing neurologist and two treating neurologists, all certifying that he could work as a meat cutter without endangering himself or others. Id. Nonetheless, the defendant-employer refused to reinstate Jansen as a meat cutter. Id. at 372.

Jansen thereafter filed a lawsuit alleging he was fired in violation of the LAD because he was an epileptic. Following a six-day trial, the trial court dismissed the complaint, finding that Jansen “failed to meet his burden of proving discriminatory termination.” Id. The Appellate Division affirmed, agreeing that the defendant-employer “reasonably arrived at” the conclusion that Jansen’s epilepsy  [687] “reasonably precluded” him from performing the duties of a meat cutter.  Id.  However, the New Jersey Supreme Court reversed and remanded concluding that “the lower courts failed to require the employer to prove with a reasonable degree of certainty that Jansen’s epilepsy would probably cause injury to himself or others … [and] the lower courts erred also in not imposing on [the defendant] the burden of proof that Jansen’s handicap reasonably precludes the performance of his duties as a meat cutter.” Id. at 383.The Court further opined that “an employer may claim that an applicant’s [disability] reasonably precludes performance of the job only after making an individualized assessment of the safety risk posed by the applicant’s [disability].” Id. at 379. Moreover, “[a]n employer may not rely on a deficient report to support its decision to fire a handicapped worker.” Id. Therefore, “[i]n an appropriate case, an employer might reasonably be expected to communicate with its expert about the meaning of the report.” Id. at 380. Finally, “[w]hen asserting the safety defense, the employer must establish with a reasonable degree of certainty that it reasonably arrived at the opinion that the employee’s handicap presented a materially enhanced risk of substantial harm in the workplace.”  The holding in Jansen is now reflected in our LAD’s regulatory analogs:

Refusal to select a person with a disability may be lawful where it can be demonstrated that the employment of that individual in a particular position would be hazardous to the safety or health of such individual, other employees, clients or customers where hazard cannot be eliminated or reduced by reasonable accommodation. Such a decision must be based upon an objective standard supported by factual or scientifically validated evidence, rather than on the basis of general assumptions that a particular disability would create a hazard to the safety or health of such individual, other employees, clients or customers. A “hazard” to the person with a disability is a materially enhanced risk of serious harm.  N.J.A.C. 13:13-2.8(a)(2) (emphasis added).

If you believe your employer unreasonably concluded that your medical disability precludes your ability to perform your job safely, then call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, we are well experienced in handling discrimination cases and will aggressively seek to discover the evidence required to get your claim to a jury. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.

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