Even if no adverse employment action is taken, employers may nonetheless be liable under the New Jersey Law Against Discrimination (LAD) for failing to reasonably accommodate employees with pre-existing conditions. In other words, the adverse employment action is the employer’s failure to reasonably accommodate the employee—or at a minimum engage in a meaningful, interactive dialogue with an employee with a disability.
The New Jersey Supreme Court formalized this rule in Richter v. Oakland Board of Education (June 15, 2021). Richter, a middle-school science teacher and longtime type-one diabetic, sued the Oakland Board of Education and her school’s principal for failing to accommodate her pre-existing condition under the LAD. Richter was assigned a late lunch break and had to wait until 1:05pm to eat. She knew this schedule would negatively affect her blood-sugar levels; she asked the principal at the start of the school year to adjust her schedule so she could break for lunch during one of the earlier periods. The principal said he would “look into it,” but he did not believe he could “undo what he did” with the schedule (although he told her if she was having trouble on a particular day she could skip her cafeteria duty at the earlier period). The principal changed Richter’s schedule in the second marking period, but he inadvertently reverted her back to the later interval in the third marking period. The principal admitted he made a mistake with the schedule, but declined to change the schedule, telling Richter that she could “have a snack” if she wasn’t feeling well and report to duty when she was feeling better. These instructions were never put into writing.
Ingesting glucose tablets and fighting the strain of the schedule due to her diabetes, Richter made it to March 5, 2013 before she suffered a hypoglycemic event in front of her students. She had a seizure, lost consciousness, and struck her head on a lab table and floor, causing extensive bleeding and serious and permanent injuries. She was awarded over $100,000 under the Worker’s Compensation Act (WCA).
Richter followed up with an LAD disability-discrimination suit alleging failure to accommodate her disability. The trial court granted defendants’ motion to dismiss, finding that Richter’s claim failed because it did not include an adverse employment action, which is typically required under the LAD. The Appellate Division reversed. The New Jersey Supreme Court granted review and confirmed much of the Appellate Division’s holding.
The Supreme Court held that no adverse employment action is required for a claim of failure to accommodate under LAD. Although a line of previous cases identified an adverse employment action as an element of the claim, the Supreme Court’s more recent decisions had not discussed “adverse employment action” as an element of a failure-to-accommodate claim. In none of these cases, however, had the Court expressly held an adverse employment action was not a necessary element. Citing federal anti-discrimination cases as a source of interpretive authority, the Supreme Court found many federal courts have not required an adverse employment action in a failure-to-accommodate claim, and distinguished away those that did.
As the Supreme Court stated, “[t]he persevering employee trying to make do without a reasonable accommodation is not remediless, and a callous employer may not escape LAD liability for failing to perform its required duty to provide accommodation simply by declining to fire, demote, or take another form of adverse action against the employee.” Otherwise, people who have requested but not received a reasonable accommodation from an employer would have to wait for an adverse employment action in order to bring a complaint or compel the employer to fulfill its affirmative obligation under the regulatory scheme.
This decision aligns New Jersey employment law with federal circuits that have similarly dropped the adverse-employment-action requirement for claims under the Americans with Disabilities Act (ADA). The Supreme Court also extended the reach of LAD claims beyond the exclusive remedy generally available under the WCA, allowing employees to seek damages for economic loss as well as emotional and physical injury caused by the employer’s failure to accommodate (although employers may be able to reduce their economic liability by whatever amount is awarded under the WCA).
New Jersey employers are therefore on notice that an employee’s request for reasonable accommodation demands a reasonable, affirmative response—indecision or inaction may put them in danger of liability under LAD. Employers should:
- Address each request and make reasonable efforts to accommodate where achievable.
- Put any attempts at reasonable accommodation in writing—unlike the principal in Richter who failed to put his oral directions in writing and the employee continued to follow the schedule until she collapsed.
Employees do not have to wait until an unfortunate event to file a claim if they feel their employer did not adequately meet their request. Unless they can demonstrate undue hardship, employers are obligated to reasonably accommodate an employee with a disability who can still perform the essential functions of their work.