New Jersey Supreme Court to Decide Whether Absence of Adverse Employment Decision is Fatal to Failure to Accommodate Claim

December 2, 2019

The New Jersey Supreme Court has granted certification and will review the Appellate Division decision in Richter v. Oakland Board of Education, 459 N.J. Super. 400 (App. Div. 2019). As we described in the August 2009 New Jersey Employment Law Letter (Vol. 27, No. 10), in Richter, the Appellate Division found that an employee alleging disability discrimination under a failure to accommodate theory does not have to show that he or she suffered a tangible adverse employment action. Previously, courts had interpreted an affirmative adverse act by an employer as one of the required elements of a discrimination claim under the New Jersey Law Against Discrimination (NJLAD). The New Jersey Supreme Court is expected to rule in the case in 2020.

Background Facts

Mary Richter, a middle school science teacher and Type I diabetic, suffered permanent physical injuries when she suffered a hypoglycemic event and fainted during one of her classes. Richter sued for failing to accommodate her medical condition under the NJLAD. Richter alleged that defendants were liable for her injuries because the principal of the middle school did not grant her request for an earlier lunch period so that she could have greater control over her insulin levels. Richter’s medical condition did not cause her to miss work and she was not disciplined, demoted, suspended, nor did she claim a hostile work environment such that she was forced to resign.

The Trial Court’s Decision

The trial court dismissed Richter’s case at summary judgment, holding that an adverse employment action was one of the required elements of disability discrimination based upon a failure to accommodate claim under the NJLAD. The Court noted that Richter was not fired or reassigned to a less favorable position as a result of her request for an accommodation and therefore could not maintain her discrimination claim.

The Appellate Division’s Decision

The Appellate Division found that Richter’s circumstances, in which her employer failed to accommodate her scheduling request, resulted in Richter being “forced to soldier on” in a work environment that “cried out for a remedy.” The Appellate Division noted that there was no explicit requirement in the NJLAD that an employee demonstrate an adverse employment action, and the Court would not impute that intent onto the Legislature who drafted the statute. The Appellate Division held that the Board’s inaction was enough and it could be found liable to Richter for her injuries based upon the Board’s failure to accommodate her request related to her disability.

Bottom Line

Should the Supreme Court affirm the Richter decision, a routine and critical element of a plaintiff’s disability discrimination claim will be removed, making it easier for employees to establish that an employer’s failure to accommodate was unreasonable even if the employee is able to continue to perform his or her job without it.

As we await clarifying guidance from the Supreme Court, employers must continue to actively engage in the interactive process with employees who request an accommodation in the workplace. Should a physical injury result that could have been prevented by accommodating an employee’s reasonable request for an accommodation of a medical condition, the employer may be liable for damages even if the employee did not suffer a formal adverse employment action.

For more information regarding this decision and best practices, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group at or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group, at or 973-533-0777.

Tags: Erica M. CliffordGenova Burns LLCNJLADDiscriminationDisability