It is possible to certify discrimination claims brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”) as class action claims. In Alleyne v. NJ Transit 2020 N.J. Super. Unpub. LEXIS 1686 (Law Div., decided Aug. 28, 2020) a New Jersey trial court certified a class action for disability discrimination. In 2018, Plaintiff Anthony Alleyne filed a class action lawsuit against his employer, the New Jersey Transit Corporation (NJ Transit), alleging that NJ Transit violated the LAD by discriminating against him based on his disability, sleep apnea. The court granted Alleyne’s motion to certify the following class: “individuals who were removed from service with NJ Transit and required to submit to sleep apnea testing while employed by NJ Transit at any time from September 19, 2016 to present.”

On October 5, 2016, Alleyne attended his routine physical examination. During the exam, Alleyne’s body mass index and neck circumference were measured. The doctor conducting the examination informed Alleyne that he believed Alleyne may have sleep apnea. Based on the doctor’s suspicions, NJ Transit removed Alleyne from service that same day. At that time, Alleyne was employed as a locomotive engineer.

Once removed, Alleyne was required by NJ Transit to undergo further testing and was diagnosed with mild to moderate sleep apnea. He was informed that, based on the results of his tests, NJ Transit required him to wear a Continuous Positive Airway Pressure (CPAP) machine and maintain a certain level of compliance before he could return to work. He paid out of pocket for the costs of tests incurred from the treatments and examinations required by NJ Transit. NJ Transit did not reimburse him for the costs and did not compensate him for the time he spent out of service.

NJ Transit’s requirements regarding sleep apnea testing and treatment imposed on Alleyne were part of NJ Transit’s “sleep apnea testing policy” created to handle people who NJ Transit suspected of having sleep apnea and to have a formalized policy to treat those cases. Under the policy, employees suspected of sleep apnea were removed from work and required to undergo medical exams and were not compensated for out-of-pocket expenses for the medical exams. NJ Transit represented there were 124 employees who were removed from service under NJ Transit’s sleep apnea policy, who were required to submit to sleep apnea testing, and subsequently tested positive for sleep apnea.

The trial court found that the facts gave rise to common questions of law and suggested common injuries under New Jersey’s Class Action Court Rule 4:32. The questions raised was whether NJ Transit’s conduct of removing employees suspected of sleep apnea from service, imposing testing requirements, and not compensating the employees were acts of discrimination in violation of the LAD. Additionally, because the class members were required to take medical exams at the request or direction of the employer, and paid for those exams out-of-pocket, there was also the question of whether NJ Transit violated the employees’ rights under N.J.S.A. 34:11-24.1.

The trial court found that sleep apnea may be considered a disability, as it appeared to fall within the definition of disability under N.J.S.A. 10:5-5(q).

The trial court further concluded that the issue of “disability” was unlikely to vary from person to person among the members of the protected class because all members were designated by NJ Transit as suspected of having sleep apnea. The court held that whether sleep apnea falls within the definition of “disability” goes to the merits of the case and cannot be decided on a motion to certify class.

The court stated that NJ Transit’s policy, which included several testing requirements and requirements regarding compensation, was allegedly applied uniformly to NJ Transit’s covered employees, and most importantly to the members of the proposed class. NJ Transit’s acts raised questions of whether NJ Transit’s policy had a disparate impact on employees who had or were perceived to have sleep apnea; according to the court, this question predominates over any individual questions.

The court found that injunctive relief with respect to the class a whole was appropriate because enjoining NJ Transit from imposing its policy, requiring mandatory testing and thereafter not compensating employees for the testing, would provide a remedy for Alleyne and class members without requiring the court to make inquiry into individual cases. Therefore, the court granted Alleyne’s motion for class certification and certified class as to both counts of Alleyne’s complaint: count 1 was Alleyne’s claim under the LAD for injunctive and declaratory relief as well as monetary damages and count 2 was Alleyne’s claim for monetary damages under N.J.S.A. 34:11-24.1.

Alleyne  instructs that class actions for disability discrimination brought under the LAD are viable if they fit the qualifying criteria of New Jersey Rule 4:32. Here, sleep apnea might be a disability under the LAD, and NJ Transit may have discriminated based on disability by applying its policy of testing requirements and compensation uniformly to its covered employees, which had a disparate impact on employees who had or were perceived to have sleep apnea.

At Mashel Law LLC, we are well experienced in effectively handling claims of disability discrimination and class action claims.  Call the attorneys at Mashel Law at (732) 536-6161 or fill out the contact form on this page for immediate help.  At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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