Like all claims under the New Jersey Law Against Discrimination (the “LAD”), claims for disability discrimination— including claims that your employer “failed to accommodate” your disability – usually require you to show that you suffered an “adverse employment action.” Simply put, this means it’s not enough to provide evidence that you asked the boss for a reasonable accommodation for your condition (such as limitations on standing/sitting, special equipment, or schedule adjustments), and yet the boss refused to grant it. Rather, the LAD typically requires that you provide additional and separate evidence that the terms and conditions of your employment were altered for the worse due to your condition. Generally speaking, an “adverse employment action” is shown by termination, demotion, or an unfavorable transfer or change in shift.
However, what if your employer’s failure to accommodate forces you into a situation that aggravates your disability, or even causes you grave physical harm? Can you file a disability claim under these circumstances, even though you were not terminated, demoted, or otherwise subject to an “adverse employment action”?
Richter v. Oakland Board of Education
Under the recent New Jersey Appellate court case of Richter v. Oakland Board of Education, 2019 WL 245807 (App. Div. 2019), the answer is a qualified and limited “yes”. The Richter decision held that a plaintiff does not have to show an “adverse employment action” to sustain a failure to accommodate claim under the LAD, when such failure to accommodate leads to egregious health consequences for the plaintiff.
Richter concerned a middle school teacher who was also a Type I diabetic. She requested her employer school provide her the reasonable accommodation of taking her lunch earlier during 5th period (beginning around 11:30am), as opposed to later during 7th period (beginning around 1pm), in order to maintain her blood sugar levels. The school maintained that it needed the teacher on cafeteria duty, requiring that she postpone her lunch until 7th period. However, the school principal directed the teacher that, if she felt weak or unwell, she could take a break from cafeteria duty to sit down and eat. Moreover, the school vice principal advised the teacher that she did not have to perform cafeteria duty. Nonetheless, neither administrator officially changed the teacher’s written schedule. Accordingly, the teacher believed she was still obliged to take a late lunch after cafeteria duty, and managed her blood sugar levels by taking glucose pills prior to 7th period.
Unfortunately, the teacher subsequently suffered a hypoglycemic seizure during her 6th period class, in which she passed out, hit her head on a lab table, and bled profusely. She later sued the school district under the LAD for failure to accommodate her disability of diabetes with an early lunch period. The school district tried to dismiss the teacher’s lawsuit on the grounds that she did not allege she suffered an “adverse employment action” such as termination, demotion or transfer. A lower trial court sided with the school district in dismissing the teacher’s claim.
Reversal at the Appellate Court
The appellate court, however, reversed this decision and allowed the teacher’s suit to proceed. In doing so, the court reasoned that the teacher did not need to show an adverse employment action under this “unusual situation . . . where the employee could demonstrate that the failure to accommodate forced the employee to soldier on without a reasonable accommodation . . . and the circumstances ‘cry out for a remedy’.”
So what does the Richter decision mean for the typical failure to accommodate plaintiff?
Our prediction is that Richter will be confined to, as the court said, “unusual” and severe circumstances, and that most plaintiffs will still have to show an adverse employment action to sustain a claim. That being said, if you:
- Asked for, but were denied a reasonable accommodation from your employer and expected instead to “soldier on” or “push through” your disability; and
- You suffered significant, substantial harm to your health as a result, then you may be able to bring an LAD suit without showing an “adverse employment action” such as firing.
How significant and substantial does the harm have to be? Keep in mind that when the Richter plaintiff hit her head due to fainting, she allegedly suffered dental and facial trauma requiring dental implants and bone grafts; a loss of smell and taste; altered speech; vertigo and dizziness; post-concussion syndrome and paranesthesia, among many other ailments. From this, we can conclude that garden-variety aches, pains and inconveniences will not alter your requirements for bringing a claim. A failure to accommodate that results in surgery or a lost pregnancy, on the other hand, may suffice.
Do you have questions regarding a potential disability/failure to accommodate claim? Call our offices today for a free consultation.