Recently the New Jersey Appellate Division held that a 60-year-old electronics systems engineer and computer programmer with a Ph.D. did not make out a case for age or disability discrimination under New Jersey’s Law Against Discrimination (LAD) after refusing a temporary assignment as a field telephone pole lineman. In Estate of Zoto v. Cellco Parternship, 2023 N.J. Super. Unpub. Lexis 466 (App. Div. decided March 29, 2023), Plaintiff Zoto was working his job for Cellco, which is owned by Verizon, “managing computer systems and data” when he, and other Cellco employees, were given so-called emergency work assignments (EWA) outside their usual job assignments to cover for Verizon union employees who were on strike. According to Verizon, EWAs are mandatory and may only be avoided if a form is completed and submitted through an online portal and an exception is found by the company which may be based on medical and non-medical reasons.  Although Zoto admitted he did not request through the portal an exception for his EWA assignment conceded during discovery he was in relatively good health, he nonetheless argued that at age 60 he could not safely perform the vigorous physical functions performed by a field telephone pole lineman. The Motion Court granted the defendants summary judgment and Zoto appealed.

In concluding that Zoto could not prove a LAD disability discrimination claim as a matter of law the Appellate Division discussed how our state courts have consistently held that the LAD “requires an employer to reasonably accommodate an employee’s handicap.” Tynan v. Vicinage 13 of Superior Ct., 351 N.J. Super. 385, 396 (App. Div. 2002); see also Viscik v. Fowler Equp. Co., 173 N.J. 1, 11 (2002). A failure to accommodate claim is a subset of a NJLAD discrimination claim. Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 90-91 (App. Div. 2001). To prove a failure to accommodate claim against an employer, a plaintiff must demonstrate that they: (1) “had a LAD handicap; (2 [were] qualified to perform the essential functions of the job, with our without accommodation; and (3) suffered an adverse employment action because of the handicap.” Id. at 91. “An employer’s duty to accommodate extends only so far as necessary to allow ‘a disabled employee to perform the essential functions of [their] job. It does not require acquiescence to the employee’s every demand.'” Tynan, 351 N.J. Super. at 397 (quoting Vande Zande v. State of Wis. Dep’t of Admin., 851 F. Supp. 353, 362 (W.D. Wis. 1994)).

Furthermore, an employee’s request for accommodation need not be in writing or even use the phrase “reasonable accommodation.” Tynan  at 400 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (1999)). The employee is not required to use magic words or expressly state they are seeking accommodation, but they “must make clear that . . . assistance [is desired] for [their] . . . disability.” Ibid. (first alteration in original) (quoting Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000)). The employer must engage in “an informal interactive process with the employee.” Ibid. (citing 29 C.F.R. § 1630.2(o)(3)). This requires the employer to identify the potential reasonable accommodations that could be adopted to overcome the employee’s precise limitations resulting from the disability.  Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation. Ibid. *15 -*16  (internal citations omitted).]

Significantly, Zoto never submitted documentation of a medical disability to the defendants, and both the Motion Court and Appellate Division rejected Zoto’s argument that despite being in reasonably good health he suffered from “infirmities that accompany aging.” Hence, after applying applicable LAD interpretive law to the facts before it, the Appellate Division affirmed the court below by concluding Zoto had presented no evidence he was disabled, and therefore, the “[d]efendants had no legal obligation to accommodate him.” *16. The Appellate Division also held that Zoto had presented no evidence demonstrating the defendants’ decision to terminate his employment was motivated by age. *21.

At Mashel Law LLC, we are well experienced in handling workplace discrimination claims. If you believe you have been the victim of unlawful discrimination 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.

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