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.
Relying on precedential guidance provided by our State Supreme Court decisions in Victor v. State, 203 N.J. 383 (2008) and Royster v. N.J. State Police, 227 N.J. 482 (2017), the Appellate Division concluded that Richter did not need to demonstrate an adverse employment action to establish a prima facie case of a failure to accommodate claim under the LAD. “So too, noneconomic actions that cause a significant, non-temporary adverse change in employment status or the terms and conditions of employment would suffice.” Richter, supra 459 N.J. Super. at 418. The Richter court opined: “Viewing the facts in the light most favorable to Richter, her claim falls within the unusual situation contemplated in Victor where ‘the employee could demonstrate that the failure to accommodate forced the employee to soldier on without a reasonable accommodation’ and there need not be proof of adverse employment action because the circumstances ‘cry out for a remedy.’ Richter, supra., 459 N.J. Super at 416, quoting Victor, supra.,203 N.J. at 421.
Having determined there is no requirement to establish an adverse employment action in a failure to accommodate LAD claim, another issue before the same appellate court was whether a bodily injury claim arising from the failure to accommodate allegation should be dismissed because it is barred by the exclusive remedy provision of the Workers’ Compensation Act (the Compensation Act), N.J.S.A. 34:15-1 to -146. The Court in Richter concluded that the Compensation Act does not bar Richter’s bodily injury claim, but should she prevail at trial, the Board should receive a credit based on the amount it paid in her workers’ compensation claim in accordance with N.J.S.A. 34:15-40 (section 40). In reaching this conclusion, the Appellate Division referred to its own decision some twenty years earlier in Schmidt v. Smith, 294 N.J. Super. 569 (App. Div. 1996) where it recognized, “there is no language in the LAD that mandates that claims made by employees against employers under it may only be brought under the Compensation Act.” Richter, supra., 459 N.J. Super at 423, quoting Schmidt at 294 N.J. Super. at 586. In considering Richter’s claims in a light most favorable to her as the non-moving party in a summary judgment motion, the court in Richter held that a reasonably-minded juror could conclude the Defendants had intentionally refused her request for an accommodation and this refusal made it substantially certain there would be a decrease in Richter’s blood sugar level that could cause bodily injuries. Richter, supra., 459 N.J. Super at 423.
Finally, the Appellate Division concluded that should the Defendant Board be liable for Richter’s bodily injury claim under the LAD for failure to accommodate Richter as a “third-party” tortfeasor, its lien on the jury award is to be governed by Section 40 of the Workers Compensation Laws.
If you believe your employer failed to accommodate your disability in violation of the LAD, call the attorneys at Mashel Law (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.