In Richter v. Oakland Bd. of Education, Case No. 083273 the New Jersey Supreme Court addressed the compelling issues of whether a plaintiff is required to establish an adverse employment action, such as a demotion or termination, in order to proceed with a failure-to-accommodate claim under the New Jersey Law Against Discrimination (“LAD”) and whether a plaintiff is barred from pursuing a failure-to-accommodate claim under the exclusivity provision of the New Jersey Workers’ Compensation Act (“WCA”).
In Richter, Plaintiff was a middle school science teacher. Teachers were permitted to take lunch as early as 11:31 a.m. or as late as 1:05 p.m. depending on their assigned schedules. Plaintiff had type I diabetes and requested to take an earlier lunch; however, the school failed to accommodate her. On March 5, 2012, she had a hypoglycemic induced seizure, became unconscious, and struck her head. She subsequently filed a workers’ compensation claim and received medical benefits, temporary disability benefits, and a partial total disability award.
Plaintiff then filed a claim under the LAD alleging that the accident would not have occurred if the school accommodated her request for an earlier lunch. Defendants moved for summary judgment and argued that plaintiff’s claim was barred by the exclusive remedy provision of the WCA. Under the WCA, employees are unable to bring personal injury suits against their employers for work related accidents in exchange for guaranteed workers’ compensation benefits. There is a narrow exception for intentional wrongs by the employer. The trial court denied the motion and found that the intentional wrong exception applied. Following the denial, defendants moved for summary judgment again, this time alleging that plaintiff failed to establish a prima facie failure-to-accommodate claim because she suffered no adverse employment action from the school. The motion was granted, with the trial court determining that because plaintiff was not fired or reassigned to another position, she did not have a prima facie case of a disability discrimination.
On appeal, the Appellate Division reversed the grant of summary judgment and found that plaintiff did not need to prove an adverse employment action to establish a prima facie failure-to-accommodate claim. It also found that plaintiff’s bodily injury claim was not barred by the WCA’s exclusive remedy provision. The matter was appealed to the New Jersey Supreme Court.
The New Jersey Supreme Court concluded that an adverse employment action is not a required element for a failure-to-accommodate claim. The employer’s wrongful act is the failure to perform its duty, and the employee does not have to suffer any further adverse action in order to bring a claim. The Supreme Court went on to hold that the failure-to-accommodate claim was not barred by the WCA. The LAD and WCA each have different purposes; are cumulative; and complementary. Furthermore, should an employee receive an award under an LAD action, the employer and its insurance carrier would be entitled to a lien on all workers’ compensation benefits paid pursuant to the WCA, thereby preventing a double recovery.
The Richter decision represents a marked change in the law, and employers need to be cognizant of the potential risk associated in ignoring an employee’s reasonable accommodation request. It is essential for employers to have practical procedures in place that offer an interactive process to handle accommodation requests. In order to demonstrate an employer failed to participate in the interactive process, a disabled employee must show:
(1) the employer knew about the employee’s disability;
(2) the employee requested accommodations or assistance for her disability;
(3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and
(4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.
Victor v. State, 203 N.J. 383, 415 (2010).
Having a procedure in place where accommodation requests are evaluated and discussed with the employee in compliance with the above standard, even if not ultimately granted, should help shield employers from liability for failure to accommodate claims under the LAD.
 Samantha E. Hahn, Esq. is a Shareholder in GRSLBG&B’s Workers’ Compensation Department. She defends employers, insurers, and third-party administrators against workers’ compensation claims in New Jersey and Pennsylvania. Samantha can be reached at SHahn@grsl.com.
 Patrick J. Nemes, Esq. is an Associate in GRSLBG&B’s Workers’ Compensation Department. He defends employers, insurers, and third-party administrators against workers’ compensation claims in New Jersey. Patrick can be reached at PNemes@grsl.com.