New Jersey Supreme Court Finds Adverse Action Not Required for Failure to Accommodate Claim

Today, the New Jersey Supreme Court ruled that an employee does not need to suffer an adverse employment action to win a claim based on the employer’s failure to accommodate her disability under the New Jersey Law Against Discrimination (“LAD”).

Teacher denied reasonable accommoation for her disability.Mary Richter is a teacher for the Oakland Board of Education.  Ms. Richter has Type 1 diabetes.  She repeatedly asked the school principal to allow her to change her schedule so she could eat lunch earlier to help her manage her blood sugar levels.  However, the school did not accommodate her an accommodation for her diabetes.

Ms. Richter subsequently experienced a hypoglycemic event in a classroom.  As a result, she fainted, hit her head on a table, and sustained very serious permanent injuries, including:

total loss of smell; meaningful loss of taste; dental and facial trauma; tinnitus; insomnia; tingling in her fingers; extraction of her right front tooth, implantation of a dental bridge and bone grafts; altered speech; neck pain and radiation to her posterior shoulder; paranesthesia and dysesthesias; post-concussion syndrome; vertigo; dizziness; severe emotional distress; and decreased life expectancy.

Ms. Richter filed a claim for worker’s compensation befits, and received those benefits.  She also filed a lawsuit against the Board of Education, alleging it failed to accommodate her disability.

The trial court dismissed Ms. Richter’s case on the basis that she did not suffer any adverse employment action, such as being fired, demoted, or passed up for a promotion as a result of the employer’s failure to accommodate her disability.

As discussed in my previous article, Employer Liable for Injury Caused by Failure to Accommodate Employee’s Disability, the Appellate Division disagreed.  It found Ms. Richter could not prove she experienced an adverse employment action because the employer’s failure to accommodate her disability did not materially alter the terms and conditions of her employment.  However, based on the unusual facts of the case, and in particular the fact that Ms. Richter continued to work for the School Board despite its failure to accommodate her disability, she could proceed with her failure to accommodate claim.

In addition, the Appellate Division rejected the employer’s argument that Ms. Richter’s claim was barred by a provision of the New Jersey Worker’s Compensation Act (“WCA”) that makes the WCA the exclusive remedy for most workplace accidents.

Likewise, the Appellate Division rejected the employer’s argument that the Board of Education should receive a 100% credit for the money Ms. Richter received from her worker’s compensation case.  While it found she could not receive a double recovery for the same workplace injuries if she wins her LAD case, it found she could keep the portion of the worker’s compensation award that was paid to her attorney since that would not be duplicative.

On June 8, 2021, in Richter v. Oakland Board of Education, the New Jersey Supreme Court affirmed the Appellate Division’s ruling in most respects.  However, it clarified that an adverse employment action is not an element of a failure to accommodate claim.  In other words, an employer’s failure to provide a reasonable accommodation, or the employer’s failure to engage in the “interactive process” to determine whether it can accommodate an employee’s disability, violate of the LAD on their own.  In doing so, the Court noted that the absence of an adverse employment action often will impact the employee’s damages.