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A Missed Opportunity for More Clarity in the Legal Standards in Disability Discrimination CasesVictor A. Afanador

Cases under the New Jersey Law Against Discrimination (“NJLAD”) implicate a dizzying number of legal and factual wrinkles-- direct evidence of discrimination, circumstantial evidence of discrimination, the “Jansen test,” whether there is a prima facie case or pretext to retaliation, and the great burden shift embedded within the “McDonnell-Douglas test”— hurdles that must be cleared before an NJLAD case can get to a jury. Employment cases are factually driven but the facts can never directly dictate the outcome. Thus, the courts, as gatekeepers of what should be presented to a jury, evaluate the legal framework and determine if the facts satisfy the legal tests so as to justify presentation of the case to a jury.

The New Jersey Supreme Court’s recent decision in Grande v. Saint Clare’s Health Sys. highlights the confusing set of tests and burdens embedded within the NJLAD and the inability to clear the path of understanding for trial lawyers and the judiciary. In this disability discrimination opinion, the Court analyzed the NJLAD legal landscape but ultimately determined that the facts were insufficient to warrant summary judgment in favor of the defendant employer.

The Court’s decision to reverse and remand this case to the trial division for a jury determination is not the point that draws legal interest. Justice LaVecchia’s concurrence expressed frustration with the convoluted nature of modern discrimination law, and advocated for simplifying the tests used in this very important area of the law, especially for disability discrimination claims:

“This case provided the Court with the opportunity to clarify and simplify the pretrial analysis of disability discrimination claims where no analysis of purported pretext or mixed motives is required. The majority does not seize that opportunity. I would step back and critically rethink our law. In keeping with this Court’s prior jurisprudence and the progressive policies expressed in the LAD and its implementing regulations, the Court should always adopt a remedial approach to LAD claims and, in implementing the statute, should do so in a manner that will most effectively further the purpose of eradicating invidious discrimination.”

Justice LaVecchia suggested streamlining the prima facie inquiry for disability cases by concluding that these cases are just different because the issue of whether the disability was the driving force for the employer’s action is never an issue and is normally an admitted fact. Employers will argue, however, that their decision was not because of the disability but because of the employee’s inability to perform his or her job properly or safely. Therefore, the main factual inquiry in a disability discrimination case centers around whether the employer’s reason for the adverse employment action was legitimate, not whether the reason was because of the disability.

According to Justice LaVecchia, any new judicial interpretations dealing with disability discrimination should be aimed at clarifying what makes an adverse employment action legitimate, rather than adding more law to the prima facie case inquiry and drawing inferences from the circumstantial evidence. Although the majority, in its analysis of the facts, gave practitioners a glimpse of the factors that a court will rely upon when determining summary judgment, the Court could have taken it a step further and provided a clearer legal standard.

Justice LaVecchia’s concurring opinion accentuated that “[b]y properly identifying the type of evidence at issue, the Court could have more plainly identified the remaining issues for trial: the plaintiff should be expected to bear the burden of showing that she was the victim of disparate treatment based on disability perceived disability, and the employer should bear the burden of proof to justify its action.” But the majority did not do that.

The legal tests should be more workable. The current complexity and uncertainty leaves the NJLAD to the adventurers that care to brave the still unchartered legal territory full of twists, tests and turns.

Not every plaintiff has a viable cause of action that is recoverable and not every employer has a justifiable excuse for the adverse employment action. The lack of a clear standard hinders the courts and litigants from understanding what type of disability cases should go to a jury. Justice LaVecchia’s concurrence took the opportunity to suggest ways to restructure the NJLAD landscape, but we are still left as trial lawyers to forge ahead with the multitude of tests and standards that remain.