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                                © 2016 Lawrence & Gerges, LLC. 

Serving Northern New Jersey and New York including Elizabeth, Newark, Rahway, Linden, Irvington, East Orange, Orange, West Orange, Union, Hillside, North Plainfield, Plainfield, Springfield, Cranford, Westfield, Scotch Plains, Roselle, Roselle Park, Kenilworth, Montclair, Livingston, Short Hills, South Orange, Maplewood, Roseland, Union City, Jersey City, Nutley, Clifton, Belleville, Kearny, Union County, Essex County, Hudson County, Bergen County, Middlesex County, Morris County, Passaic County, Sussex County, New York City, Brooklyn, Bronx, Staten Island, Queens and Manhattan.

 

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Disability Discrimination and Failure to Accommodate

Disability Discrimination Law in New Jersey. Two main laws protect and assist disabled persons who wish to participate in the workforce in New Jersey. At the federal level, there is the Americans with Disabilities Act (“ADA”) and at the state level there is New Jersey’s Law Against Discrimination (“LAD”). Both laws not only protect against hiring or workplace discrimination based on disability, but also require that employers offer “reasonable accommodations” for employees’ disabilities when requested.

The LAD, however, is by far the stronger of the two laws.  While the ADA only applies to employers with at least 15 employees, the LAD applies no matter what size the employer. The LAD also has a much broader definition of “disability” than the federal law. Finally, while both laws allow a victim to sue in court for money damages, the ADA requires that a victim must first “exhaust his administrative remedies” by filing a complaint with the federal Equal Employment Opportunity Commission (“EEOC”) within 300 days of the discrimination and receive a “right to sue letter.” Under the LAD, a victim of disability discrimination can go straight to court, and has two years from the date of the discrimination to do so.

The Definition of Disability. The LAD's definition of “disability” is much broader than the ADA’s. To qualify as disabled under the ADA, a person must have a physical or mental impairment that “substantially limits one or more major life activities.” Examples of “major life activities” under the ADA include seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. Substantially limited means being unable to perform or significantly restricted.

Under however the LAD virtually any medically diagnosable condition or illness qualifies as a disability including:

  • physical disability, infirmity, malformation, or disfigurement.

  • physical illness or disease.

  • non-physical impairments including mental, psychological, or developmental disabilities that either prevents the normal exercise of any bodily or mental functions or can be shown to exist through clinical or diagnostic tests.

  • paralysis, amputation, epilepsy, visual/hearing impairments, speech impediments, AIDS, HIV infection, and blood traits.

The LAD also protects non-disabled workers who are nonetheless perceived to have a disability (for example, an employee whose coworkers falsely believe she has HIV) and those who have suffered a disability in the past or whose employer believes may suffer a disability in the future. 

What is Protected. It is illegal for an employer to exclude a person from applying for a job or deny them training, promotion or other work benefits because of a disability or perceived disability. It is also illegal to fire or refuse to hire a person due to disability when that person can (with appropriate accommodations) perform the essential functions of the position unless the employer can show employing the person would be hazardous in that it would materially increase the risk of serious harm or death to the disabled employee or others. 

 

Proving that a disabled person would pose a hazard requires scientifically validated medical evidence that the particular disabled employee would be a hazard in that particular job.  An employer cannot rely on general assumptions or stereotypes about the nature of the employee’s disability in determining that a safety hazard exists.

The Right to Reasonable Accommodations. Disabled employees have the right to reasonable accommodations for their disabilities.  Such accommodations may include making facilities handicapped accessible, job restructuring or offering part time work, job reassignments or providing the disabled employee with special equipment or assistive devices. 

Once an employer becomes aware of the need for an accommodation, it must initiate and participate in an interactive process with the employee and relevant medical providers to determine what kind of accommodations may be helpful or required.  Moreover, an employer must consider appropriate accommodations before making an adverse decision due to a disability affecting performance. For example, an employer cannot fire a disabled employee for being slow on an assembly line without first considering whether assistive technologies are reasonably available to help the employee keep up.  

Once a reasonable accommodation is identified, an employer must provide it unless the employer can show that providing it would impose an undue hardship on the operation of the employer’s business. Whether a particular accommodation is an “undue hardship” depends on things like the size of the employer’s business, the type of business, the type and cost of the accommodation sought, and whether the accommodation would enable the employee to perform the essential functions of the job.

How We Can Help. If you believe you have been discriminated against based on a disability, if your employer refuses to accommodate your disability, retaliates against you for seeking an accommodation, you may have the right to sue for money damages.  At Lawrence & Gerges, we are experienced trial lawyers and with an extensive background in employment law and a passion for advocating on behalf of the disabled. We can represent you all the way from investigation through settlement, or, if necessary, at trial.  We offer free consultations, and, as always, if we believe you have a strong enough case, we will represent you on a contingent basis where you pay no money up front, and we only get paid if and when we recover money for you. (See Silvia’s blog, 5 Reasons Why You Shouldn’t Pay a Lawyer in an Employment Case.)