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 (ADA)?
I have two recent cases and two different answers -- depending on whether you are in state or federal court, plus some general accomodation tips for employers after the jump...
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 employer.
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 takeaways:
- As I've discussed before, if a disabled employee comes to you requesting a reasonable accommodation, engage that employee in an interactive dialogue to determine what can be done to accommodate the disability.
- The employee does not necessarily get the precise accommodation sought, especially if the request is unreasonable. The employer may ultimately select the accommodation.
- What is reasonable for one employer, may not be reasonable for another. But if in doubt, provide the accommodation. Save yourself a potential future headache.
For more on reasonable accommodations, check out this Enforcement Guidance Memo from the EEOC.