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August 15, 2019 by Steven S. GlickmanDownload PDF


WHAT WE HAVE HERE IS A FAILURE TO ACCOMMODATE - OR NOT!Steven S. Glickman

The New Jersey Law Against Discrimination (“NJLAD”) is a very broad-based piece of legislation, liberally construed, to eliminate the “cancer of discrimination” Fuchilla v. Layman, 109 N.J. 319 (1988). The purpose of both the NJLAD and the Federal statute that it mirrors, the Americans With Disabilities Act (“ADA”), is to: (1) prevent discrimination against individuals with disabilities; (2) protect the rights of these individuals; and (3) provide them with an avenue to seek assistance in protecting these rights through the courts.

In “failure to accommodate,” it is necessary for an individual to first establish a prima facie case, which requires the individual to demonstrate that he or she: (1) qualifies as an individual with a disability or is perceived as having a disability; (2) is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate his or her disabilities. See Royster v. State Police, 227 N.J. 482 (2017).

It must be noted that unlike the ADA, the NJLAD does not address the issue of “failure to accommodate.” However, through case law, New Jersey courts have determined that the “reasonable accommodation” standard is implicit in the statute and employers must reasonably accommodate an employee’s disability.

The question always arises as to what is considered “reasonable.” In Carabello v. City of Jersey City Police Department, the New Jersey Supreme Court dealt with this issue in the context of medical treatment as a “reasonable accommodation.”
In Carabello, the police officer (Carabello) argued that the police department failed to accommodate his disability by refusing to authorize his double knee replacement. The Police Department argued that such a claim was unwarranted because Carabello could not perform the essential functions of his job even with the “accommodation” (surgery).

In reaching its determination, the Supreme Court referenced the New Jersey Administrative Code, the ADA, and the Equal Employment Opportunity Commission (“EEOC”) guidelines to define “reasonable accommodation.” The accommodations referenced in the New Jersey Administrative Code “are all designed to make certain changes in the work environment or structuring of employees’ time that will allow disabled employees to remain at work without their physical handicaps impeding their job performance.” Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412 (App. Div. 2001) (emphasis added). The Supreme Court cited to the ADA definition of “reasonable accommodation” as follows: “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” The Supreme court them cited to the EEOC regulations defining “reasonable accommodations” as follows: ‘modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position” (emphasis added).

The Supreme Court’s holding was strongly influenced by the U.S. District Court’s decision in Desmond v. Yale-New Haven Hosp., Inc., 738 F. Supp. 2d 331 (D. Conn. 2010), where the District Court addressed the same issue as in Carabello. The District Court concluded that medical treatment had no bearing on “changes in the work environment” or “removal of workplace barriers,” and as such did not fall within the definition of reasonable accommodation.

Armed with these statutory and administrative references, bolstered by the District Court’s decision in Desmond, the New Jersey Supreme Court in Carabello held that the medical procedure sought by Carabello “is neither a modification to the work environment nor a removal of workplace barriers,” and therefore did not qualify as a “reasonable accommodation” under the NJLAD.