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.

Although finding no bright-line rule defining what an adverse employment action is under the law, the court in Richter concluded the BOE’s failure to allow Richter an early lunch did not rise to an adverse employment action. Richter, N.J. Super. at 18 and 20. Nonetheless, Richter was not required to demonstrate an adverse employment action because her claim potentially falls “within the unusual situation contemplated in Victor” where she may potentially be able to demonstrate that the BOE’s failure to accommodate her disability caused Richter severe emotional distress, that is, it required her to “soldier on without a reasonable accommodation.” Id. at 17 (quoting Victor, 203 N.J. at 421). Therefore, summary judgment dismissing Richter’s claim was inappropriate because she was not given the opportunity to prove damages at trial. Id. at 18.

At Mashel Law LLC, we are well experienced in handling LAD claims. 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 in assessing whether you have an actionable claim against your employer. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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