Mcdonnell Douglas Modified For Discrimination Claims Based On Disability - A Grande Roadmap
On July 12, 2017, the Supreme Court of New Jersey issued a decision in
Maryanne Grande v. Saint Clare’s Health System, outlining the steps for evaluating discrimination cases based on disability.
The Court recognized the three-step analysis required pursuant to
McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The first step requires that a plaintiff establish a prima facie case. If the first step is met, the second step requires the employer to establish the reasonableness of the otherwise discriminatory act or advance a non-discriminatory reason for the employee’s discharge. If the second step is met, the third step requires the employee to prove by preponderance of the evidence that the reason proffered by the employer “was not the true reason the employment decision but was merely a pretext for discrimination.”
In
Grande, the Court elaborated on the first step of
McDonnell-Douglas:
When a plaintiff alleges she was fired discriminatorily based on a disability, she must prove by a preponderance of the evidence that: (1) she is disabled within the meaning of the [New Jersey Law Against Discrimination]; (2) she “was performing [her] job at a level that met [her] employer’s legitimate expectations”; (3) she was discharged; and (4) the employer sought someone else to perform the same work after she left.
The Court further explained that, with respect to the first prong, a perception of a disability is just as actionable as an actual disability. To meet the burden of the second prong, the Court stated, the plaintiff need only produce evidence showing that he or she was actually performing the job prior to termination. The third prong, termination (or other adverse employment action) needed no discussion. And the fourth prong is required to show the employer’s “continued need for the same services and skills.”
The critical part of the Court’s decision in applying the “
McDonnell Douglas test” to disability claims centers around the second step, or the employer’s defense. The Court held that, as always, if the employer claims that it has a non-discriminatory reason for the discharge, the employer has only burden of production, and not the burden of proof or persuasion. However, if the employer’s defense is that the employee could not perform his or her job because of the disability, the employer’s burden is substantially changed:
To carry its burden, the employer must prove “it ... reasonably arrived at its opinion that the [employee] is unqualified for the job.” [Citation]. The employer must produce evidence that its decision was based on “an objective standard supported by factual evidence” and not on general assumptions about the employee’s disability. N.J.A.C 13:13-2.8(a)(3).
The Court cited “safety,” that is, where continued employment “would be hazardous to the safety or health of [the employee], other employees, clients or customers,” as an example of an affirmative defense that could be used by the employer in this context. Such a defense, however, requires, “a materially enhanced risk of substantial harm,” and the employer may not base its discharge decision on “subjective evaluations or conclusory medical reports.”
The Court also addressed the LAD regulation with respect to a reasonable accommodation, placing the “reasonable accommodation” argument in the second prong of the prima facie case for purpose of consideration and analysis:
In addition to the above analysis, the LAD regulations require an evaluation of whether a reasonable accommodation would have allowed the disabled employee to perform her job. The Administrative Code mandates that an employer “consider the possibility of reasonable accommodation before firing, demoting or refusing to hire or promote a person with a disability precludes job performance.” N.J.A. C. 13:13-2.5(b)(2).
Accordingly, we hold that the reasonable accommodation consideration belongs in the second-prong analysis. A plaintiff may satisfy the second prong of the prima facie case for an allegation of discriminatory discharge based on a disability by putting forth evidence either that she was actually performing her job or was able, with or without reasonable accommodation, to perform her job to her employer’s legitimate expectations.
An employer may rebut a plaintiff’s reasonable-accommodation showing by providing evidence that the proposed accommodation is unreasonable. See N.J.S.C. 13:13-2.5(b); 2.5(b)(3)(i) to (iv).
The Supreme Court in
Grande set forth a roadmap for analyzing discrimination cases based on disability. Going down the path of analyzing these cases based upon the traditional
McDonnell-Douglas scenario will lead you astray. Recognizing the nuances of a discrimination claim based upon disability and applying them to your case, while not guaranteeing success, will keep you on the “straight and narrow.”
