Let's say you operate a business in NJ. Your disabled
employee comes to you requesting an accommodation for his disability. Does the
mere failure to provide that accommodation trigger a claim under the New Jersey Law
Against Discrimination (NJLAD)? What about under the Americans with Disabilities Act
I have two recent cases and two different answers --
depending on whether you are in state or federal court, plus some general accommodation
tips for employers.
NJ state law requires something more than a
mere failure to accommodate.
The NJLAD makes it unlawful for employers to
discriminate on a variety of bases, including one's disability. And much like
under the ADA, if a disabled individual requests that his/her employer afford a
reasonable accommodation to allow the individual to perform
the essential functions of the job, the employer must oblige.
In Zack v. State of NJ, a recent NJ Superior Court, Appellate
Division decision, the employer did that. In fact, it bent over backwards to
accommodate an employee with sensitivity to light and smell. Her workstation
was relocated and retrofitted, where possible, to provide plaintiff with the
optimum environment to accommodate her sensitivity to light. Coworkers adjusted
their work environment and personal grooming habits to accommodate the
plaintiff's sensitivity to perfumes. Notwithstanding, the plaintiff claimed
that the defendants created an intolerable work environment, quit, and brought
a failure to accommodate claim under the NJLAD only against her former
In analyzing her claim, the Zack Court noted that
the NJ Supreme Court in Victor v. State of NJ had left open the question of whether
a failure to accommodate claim was actionable without an adverse employment
action, such as a termination or constructive discharge. The Zack Court then
proceeded to close that loop with a big fat no.
Despite Victor's legacy of uncertainty, under
prevailing legal standards, the third element of a prima facie for employment
discrimination based on disability requires plaintiff to show she suffered an
adverse employment action due to her handicap.
"Adverse employment action" is more
broadly construed under federal law.
The Zack rule does not apply to a
"failure to accommodate" claim asserted under the ADA. Indeed, just
last week, a Pennsylvania federal court reaffirmed this, citing Third Circuit precedent that adverse employment
decisions under the ADA include refusing to make reasonable accommodations for
a plaintiff's disabilities or failing to engage in the interactive process after the employee requests an
accommodation (assuming a reasonable accommodation is possible).
Now that we have that squared away, three
For more on reasonable accommodations, check out this
Enforcement Guidance Memo from the EEOC.
This article was originally published on Eric B. Meyer's blog, The Employer
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