NJ Supreme Court Strikes Adverse Employment Action Requirement in Failure to Accommodate Claims
June 22, 2021
On June 8, 2021, the New Jersey Supreme Court in Richter v. Oakland Board of Education affirmed the Appellate Division’s ruling that an employee asserting a failure to accommodate claim does not have to separately establish that she suffered an adverse employment action in addition to demonstrating her employer’s inaction in failing to reasonably accommodate her disability.
Mary Richter is a science teacher at Valley Middle School in the Oakland School District. Richter is also a Type I diabetic. At the school where she worked, students were scheduled to eat lunch during fifth and sixth periods between 11:31 a.m. and 1:02 p.m., and the teachers who were assigned to cafeteria duty and hall monitoring during those periods were scheduled to have lunch during seventh period, between 1:05 p.m. and 1:49 p.m.
Richter informed the principal of Valley Middle School, Gregg Desiderio, that she is a diabetic, and requested an accommodation in the form of an earlier lunch during fifth or sixth periods, because her blood sugar levels would be negatively impacted if she had to wait until after 1:00 to eat her lunch.
Desiderio changed Richter’s lunch schedule from seventh to fifth period for the second marking period, but Richter was again assigned to the later seventh period lunch for the third marking period of the school year. When Richter brought this to Desiderio’s attention, he did not change her schedule but instead told Richter that she could sit down and eat a snack during class or cafeteria duty if she was not feeling well. Her union president told Richter that she could not be disciplined for skipping cafeteria duty, but Richter believed that her schedule had to be formally changed and approved in writing by Desiderio. She continued to ingest glucose tablets to help keep her sugar elevated until she could eat lunch at her assigned break time at 1:05 p.m. However, several weeks into the third marking period, Richter experienced a hypoglycemic event which caused her to have a seizure and faint, striking her head on a lab table and floor. Richter suffered permanent physical injuries as a result of her fall.
Lower Court Rulings
Richter sued the Oakland Board of Education and Desiderio for failing to accommodate her disability under the New Jersey Law Against Discrimination (NJLAD). The trial court granted the Board and Desiderio’s motion for summary judgment and dismissed the case, finding that because Richter was not subjected to an adverse employment action - she was not fired or reassigned to a less favorable position – she could not proceed with her claim because she failed to establish this required element.
As noted in my previous article, the Appellate Division reversed the trial court holding and found that employees can proceed with their claims against employers for failure to reasonably accommodate the employee’s disability, even if the individual cannot point to an additional adverse employment action that they suffered.
NJ Supreme Court Decision
The NJ Supreme Court settled the dispute and affirmed the Appellate Division ruling that an adverse employment action is not a required element of a failure to accommodate claim under the NJLAD. The Court emphasized the language in the state regulation that requires employers to “make a reasonable accommodation to the limitations of an employee…who is a person with a disability’” unless it is determined that “it would impose an undue hardship” on the operation of the business. This affirmative duty makes no mention of a further showing that the employee was subjected to a punitive or adverse employment action on top of the initial refusal to accommodate.
The Supreme Court reasoned that the broad remedial purpose of the NJLAD was designed to protect “individuals with disabilities who request reasonable accommodations, whose requests are not addressed or denied, and who continue nonetheless to toil on.” The Court rejected the two step process advocated by the defendants – that Richter not only show that the District failed to accommodate her request for a scheduling modification, but that in addition to that, she demonstrate that she suffered an adverse employment action, usually in the form of a termination, suspension, transfer or reassignment to less desirable job responsibilities.
The Court held that “an employer’s inaction, silence, or inadequate response to a reasonable accommodation request is an omission that can give rise to a cause of action” on its own, and that “it would verge on the illogical” to further require an affirmative act in the form of an adverse employment action when the basis for liability is rooted in the employer’s failure to act.
The Court also drew a distinction between its ruling, and that of Richter’s initial arguments before the lower courts and a federal court decision in the Third Circuit. The Court declined to hold that the refusal to make a reasonable accommodation can in itself be treated as an adverse employment action such that it would satisfy that element of a disability discrimination claim. The Court rejected the Third Circuit’s approach that “collapses the two traditional proof elements into one,” and saw no need for “additional formalistic hurdles” for the employee. Instead, the Court adopted what it characterized as a “better, simpler course” - one that removes the adverse employment action requirement from the elements of a failure to accommodate claim.
The Court’s decision also resolved the dispute regarding any perceived conflict between the NJLAD and the Worker’s Compensation Act (WCA). The Court found that Richter’s NJLAD claim was not barred by the exclusive remedy provision of the WCA, nor was she required to prove that her employer committed an “intentional wrong” in order to pursue her NJLAD claim. While her employer was entitled to recoup the equivalent of her receipt of medical and temporary disability benefits if she prevailed at trial, this would not apply to the fees paid to Richter’s worker’s compensation attorney.
The Richter decision underscores an employer’s affirmative obligation to engage in meaningful discussions with an employee who requests an accommodation for her disability, and an employer’s duty to provide the accommodation if it is reasonable and would not present an undue hardship to the employer.
Silence, inaction, or a response objectively determined to be inadequate, will likely be deemed a breach of this duty, and the basis of a failure to accommodate claim under the NJLAD. A lack of “demonstrable consequences” – for example lost wages from a formal termination, or injuries to the extent suffered by Richter - would potentially impact the employee’s claim for damages, but would not absolve the employer from liability.
For more information regarding this decision and best practices for accommodations in the workplace, please contact John C. Petrella, Esq., Chair of the firm’s Employment Law & Litigation Practice Group via email here or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group, via email here or 973-533-0777.