Words from New Jersey Worth Looking at with Respect to Adverse Action in Failure to Accommodate Cases and Workers Compensation Exclusivity

Today’s case explores the arguments as to why an adverse action is not necessary in failure to accommodate cases. As a bonus, it also explores how workers compensation exclusivity does not preempt a state’s disability antidiscrimination law. The case of the day is Richter v. Oakland Board of Education decided on June 8, 2021, by the New Jersey Supreme Court in a unanimous opinion. Most of the cases I write about are federal cases and not state ones. However, this case is an excellent read for understanding the arguments as to why a court would hold that an adverse action is not required in failure to accommodate claims. For those states with disability antidiscrimination laws, Georgia is not one of them, it also provides a good explanation as to why the exclusive remedies provisions of the workers compensation statute does not preempt disability discrimination claims under state law. As usual, blog entry is divided into categories and they are: facts; adverse action not required for failure to accommodate claims under New Jersey law; exclusive remedies provisions of the Worker’s Compensation act does not bar other claims for disability discrimination under the New Jersey Law against Discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Richter, a longtime type I diabetic and teacher, experienced a hypoglycemic event in the classroom because her work schedule prevented her from eating her lunch early enough in the day to maintain proper blood sugar levels. She fainted, hit her head on a laboratory table, and sustained serious and permanent life altering injuries, which are described in the opinion Throughout the school year she repeatedly attempted to have the school make reasonable accommodations so that she could eat lunch in a timely way and not put herself at risk. The school ignored those entreaties. They did grant the accommodation at one point in time but that did not stick for the entire year. Until the event, she continued to work as a teacher and no adverse action outside of the failure to accommodate was ever taken. She did file for workers compensation successfully where she received $18,940.94 for medical bills, $9792.47 for temporary disability benefits, and $77,200 in partial total permanent disability benefits. She also then filed under the New Jersey Law against Discrimination. Trial court granted summary judgment for the Board of Education but that was reversed on appeal. The Oakland Board of Education appealed to the New Jersey Supreme Court.

 

II

Adverse Actions Are Not Required for Failure to Accommodate Claims Arising under the New Jersey Law against Discrimination

 

1. The New Jersey Law against Discrimination prohibits discrimination on the basis of disability.
2. Although the New Jersey law does not explicitly address the reasonable accommodation requirement or claim, New Jersey courts have uniformly held that the law does require an employer to reasonably accommodate an employee’s disability. That requirement was codified in a regulation by the agency responsible for administering the law and promulgating regulations for its implementation and enforcement.
3. Under the New Jersey administrative code, an employer must make a reasonable accommodation to the limitations of an employee who is a person with a disability unless an undue hardship is imposed on the operation of the business.
4. In a prior case, the New Jersey Supreme Court said that it is entirely possible, though it probably would be a rare occurrence, for a person to have a failure to accommodate claim without an adverse action because some individuals requesting reasonable accommodations will continue to toil on even though their reasonable accommodation request are not addressed or the requests are denied.
5. The elements of a failure to accommodate claim under New Jersey law are: 1) person is an individual with a disability or is perceived as having a disability as defined by the statute; 2) person is qualified to perform the essential functions of the job or was performing those essential functions with or without reasonable accommodation; and 3) the defendant failed to reasonably accommodate his or her disabilities. An adverse employment action does not appear in these elements of a failure to accommodate claim.
6. Federal antidiscrimination cases provide a helpful source of interpretive authority.
7. In interpreting the ADA, many federal courts have recited the elements of a failure to accommodate claim without mentioning a requirement of an adverse employment action.
8. One circuit, the Third Circuit Court of Appeals, has said that adverse employment action includes refusing to make reasonable accommodation for plaintiff’s disabilities. The Eighth Circuit has done the same.
9. The 10^th Circuit has said that an adverse employment action is not a required element of a failure to accommodate claim. We discussed that case, Exby-Stolley v. Board of County Commissioners, here.
10. The 10^th Circuit in Exby-Stolley based its reasoning on its own failure to accommodate precedents, the precedents of no fewer than six circuits strongly suggesting that failure to accommodate claim do not require an adverse action, the plain text of the ADA, regulatory pronouncements of the EEOC, and common sense. With respect to common sense, the 10^th Circuit Court of Appeals said that it would make little sense to require the showing of an adverse employment action as part of a failure to accommodate claim because it verges on the illogical to require plaintiffs in failure to accommodate claims to establish that their employer acted adversely toward them when the fundamental nature of the claim is the employer’s failure to act.
11. Insistence on an adverse action in failure to accommodate claims does not serve the New Jersey Law against Discrimination broad remedial purposes.
12. An adverse action requirement is not consistent with the obligation of employers to reasonably accommodate an employee with a disability.
13. The overriding purpose of the New Jersey Law against Discrimination’s promise to eradicate obstacles in the workplace for people with disabilities is to make it possible for people with disability to work.
14. Given that employers have an affirmative obligation to make reasonable accommodation, why should people who have requested but not received the reasonable accommodation from an employer have to wait for an adverse employment action to follow the employer’s denial or inaction-or refusal to even engage in an interactive dialogue about the request-in order to bring a complaint to compel the employer to do its affirmative obligation laid out by the regulatory scheme? Even posing the question answers the question.
15. The breach of the duty can and should be addressable before an adverse employment consequence occurs.
16. The wrongful act for purposes of a failure to accommodate claim is the employer’s failure to perform its duty and not the further adverse employment action that the employee suffers.
17. The persevering employee trying to make do without a reasonable accommodation is not without his or her remedies, and a callous employer does not get to escape liability under the New Jersey Law against Discrimination for failing to perform its required duty to provide accommodation simply by declining to fire, demote, or take another form of adverse action against the employee. Such an approach essentially renders the reasonable accommodation requirement unenforceable in its own right and runs roughshod over the legislature’s stated intent to eradicate discrimination and make the workplace hospitable for persons with disabilities.
18. 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. In other words, a failure to accommodate claim is not dependent on causing harm to the employee through an adverse employment action.
19. The employer of an employee suffering consequences from the employer’s failure to accommodate should not escape liability under New Jersey Law against Discrimination merely because those consequences do not fit neatly into a definition of adverse employment action.
20. While a lack of demonstrable consequences-whether in the form of an adverse action, of injuries like those sustained by Richter or of some other type-might affect the damages an employee is entitled to, an employer’s failure to accommodate is in and of itself and actionable harm.
21. Courts holding that the failure to reasonably accommodate is the adverse action winds up being a matter of form over substance. Such analysis results in the same outcome for the plaintiff’s ability to proceed with the claim as when the element is not required at all. Accordingly, there is no need to add additional formalistic hurdles to a failure to accommodate claim.
22. Since providing a reasonable accommodation is an obligation of the employer, it makes little sense to include the adverse employment action element even in form. The better and simpler course is to recognize that an adverse employment action is not an element of a failure to accommodate claim.

 

III

Does the Exclusive Remedies Provisions of Workers Compensation Schemes Bar a Disability Discrimination Suit under the New Jersey Law against Discrimination

 

1. Enacted in 1911, the New Jersey Worker’s Compensation Act amounted to a historic trade-off where employees relinquish the right to pursue common law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injury by accident arising out of and in the course of employment.
2. The New Jersey Worker’s Compensation Act has an exception for intentional wrongs.
3. In all of the prior cases discussing the intentional wrong exception, the injured employee brought common law claims against their employer as opposed to statutory claims.
4. The purpose of the New Jersey Law against Discrimination is no less than the eradication of the cancer of discrimination in our society.
5. The New Jersey Law against Discrimination is given liberal construction because the more broadly it is applied, the greater its anti-discriminatory impact.
6. In 1990, the New Jersey Law against Discrimination was amended to add common law remedies for a New Jersey Law against Discrimination statutory violation. In amending the statute, the legislature noted that people who suffer discrimination suffer a myriad of personal hardships including: economic loss; time loss; physical and emotional distress; illness; homelessness; other irreparable harm resulting from the strain of employment controversy; relocation; search and moving difficulty; anxiety; uncertainty; planning difficulties; career, education, family, and social disruption; and adjustment problems. The legislature goes on to say that compensatory and punitive damages need to be available to all persons protected by the act and that the act must be liberally construed in combination with other protections available under the laws of New Jersey.
7. Prior New Jersey Supreme Court cases have dealt with the issue of what happens when other statutes are implicated when Worker’s Compensation is also involved. In those cases, the New Jersey Supreme Court held that the workers compensation scheme did not trump the other statute.
8. The workers compensation statute was in place when the New Jersey Law against Discrimination was enacted when the legislature stated clearly that its intent was for the New Jersey Law against Discrimination to be treated as supplemental to other remedies. The legislature certainly would have been aware of the Worker’s Compensation Act when it included such strong direction and when it added the common law remedies to the New Jersey Law against Discrimination in 1990.
9. The New Jersey Law against Discrimination, law remedies made available by way of the 1990 amendments do not pose a conflict with the Worker’s Compensation act. That is, each statute operates to fulfill different purposes, both protective of workers in the workplace. The statutes function cumulatively and complementarily and not in tension, much less in conflict, with each other.
10. The facts of this case illustrate not only how the two statutory schemes operate harmoniously, but why it is important that they do so.
11. Richter’s disability discrimination claim is not duplicative of the type of claim whose regress it secured to the Worker’s Compensation Act and should not be regarded as subordinate to the Worker’s Compensation Act exclusive remedy feature. That is, the New Jersey Law against Discrimination provides relief under state statute for a different workplace wrong.
12. In a footnote, the New Jersey Supreme Court noted that it has been understood that state Worker’s Compensation exclusivity provisions do not bar claims brought under federal civil rights laws because to do so would violate the supremacy clause. While the supremacy clause is not involved here, the New Jersey Law against Discrimination’s broad remedial purposes and the wide scope of its coverage for disabilities as compared to the ADA an expansive view of protecting the rights of people with disabilities in the workplace. Holding that the New Jersey Law against Discrimination claims would be barred by the Worker’s Compensation Act would have the peculiar effect of rendering the New Jersey law less protective than the ADA. That is not something the New Jersey Supreme Court wants to do because it would depart from their precedent.
13. The two legislative acts provide relief for separate wrongs and can coexist in harmony with the purposes of each being fulfilled. Indeed, the two statutory schemes, when harmonized, operate to prevent double recovery. With double recovery averted, no possible conflict exists. So, the full throated pursuit of remedies available under the New Jersey Law against Discrimination for disability discrimination get to proceed unencumbered by the Worker’s Compensation Act exclusivity bar.

 

IV

Thoughts/Takeaways

 

1. I realize that this is a decision based upon New Jersey law. However, the case does a good of a job as I have seen with respect to laying out why a failure to accommodate case should not have an adverse action requirement.
2. For those states with antidiscrimination laws on the basis of disability, this case also does an excellent job of laying out why a state’s disability antidiscrimination law is not preempted by Worker’s Compensation statutes.
3. Taking away any adverse action requirement in failure to accommodate cases, makes getting the interactive process right, which we discussed here, even more important than it already is. It is already plenty important and going to become more so.
4. A person in need of accommodations who has the request ignored or denied has undoubtedly suffered an action adverse to that individual. Real harm as discussed in ¶ III(6) of this blog entry can ensue when an accommodation is wrongfully withheld. Adverse action in the legal sense means something else, which is why the New Jersey Supreme Court said it wasn’t necessary. It is also why it is not a leap for some courts to say that an adverse action in the legal sense occurs by denying the accommodation.
5. Whether failure to accommodate cases require an adverse action beyond the failure to accommodate will undoubtedly go to the United States Supreme Court. Normally, I would say that the person with the disability would be up against it because it is an employment situation and the United States Supreme Court generally does not favor the person with a disability in employment situations. However, if there was ever a case where there United States Supreme Court would favor a person with a disability in an employment situation it would be a case like this.

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