Disability Discrimination

Court Recognizes New Jersey Law Against Discrimination’s Broad Definition of Disability

August 1, 2024 | by Jonathan I. Nirenberg

In a recent unpublished decision, New Jersey’s Appellate Division make it clear that an employee does not have to have a severe or permanent impairment to have a viable disability discrimination to be protected by the New Jersey Law Against Discrimination (“LAD”).

The case was filed by Bart Algozzini, who worked for DGMB Casino, LLC doing business as Resorts Casino Hotel (“Resorts”) as its Director of Slot Operations. Mr. Algozzini took a medical leave after he suffered second and third-degree burns over seventy percent of his body after his boat exploded. He was hospitalized for a month, during which he was placed in a medically-induced coma for more than two weeks. After leaving the hospital, he was in a rehab facility for a week-and-a-half, followed by over three months of outpatient physical therapy sessions.

While Mr. Algozzini was on his medical leave, Resorts eliminated his position as the Director of Slot Operations and instead created two new positions: Slot Service Manager and Slot Technical Manager. Resorts gave Mr. Algozzini the position of Slot Service Manager, a job with fewer responsibilities and that paid $23,000 less per year than his former position as its Director of Slot Operations. Resorts did not eliminate any other positions at that time.

Court Dismisses Failure to Accommodate Claim But Allows Related Retaliation Claim to Proceed

February 1, 2024 | by Jonathan I. Nirenberg

Recently, the District of New Jersey dismissed an employee’s disability discrimination and failure to accommodate disability claims, but did not dismiss her related retaliation claim.

Amber Ray worked as a Project Manager/Estimator for Elecnor Hawkeye, LLC. Before she began working for Elecnor, Ms. Ray had been diagnosed with Lupus. However, sometime after Elecnor fired her, she learned she had been misdiagnosis and actually had Hypermobile Ehlers-Danlos syndrome, which is a complex musculoskeletal condition, and several other auto-immune conditions.

On Friday, July 30, 2021, Ms. Ray sent a text message to her supervisor, Hal Meeler, informing him that she would be working from home that day. In response, Mr. Meeler told Ms. Ray she was required to work in the office, and he would discuss the issue with her on Monday.

New Jersey Court Analyzes Time Off as Reasonable Accommodation for Disability

October 11, 2023 | by Jonathan I. Nirenberg

Under the New Jersey Law Against Discrimination (“LAD”), time off can be a reasonable accommodation for a disability as long as the time off sought is reasonable. A recent decision from the District of New Jersey provides a good example of how Courts analyze this issue at the early stage of a case, as well as a dispute about the employee’s ownership interest in the business.

Michaela Wark worked for J5 Consulting, LLC as a senior consultant in New Jersey. In June 2020, Michael Johnson, who is the Chief Executive Officer and an owner of J5, told Ms. Wark that he was promoting her to a Partner of J5 and making her a 5% owner of the company.

Mr. Johnson provided Ms. Wark a letter confirming her promotion and 5% ownership, which states that she would lose her ownership rights if she was “fired for gross negligence or misconduct.” The letter also say Ms. Wark “must be employed by the company six months prior to sale for the rights of ownership to apply.”

When Can an Employer Require a Fitness for Duty Exam?

May 16, 2022 | by Jonathan I. Nirenberg

As a New Jersey employment lawyer, I have had numerous clients tell me their employer has asked or required them to undergo a fitness-for-duty examination. However, anti-discrimination laws limit when an employer has the right to send an employee to a medical exam.

Protection Under Anti-Discrimination Laws

The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) both prohibit employers from sending employees for a fitness-for-duty exam unless the exam is “job-related” and “consistent with business necessity.”

Requiring Employee to Seek Another Job is an Adverse Employment Action

March 13, 2022 | by Jonathan I. Nirenberg

A recent case recognizes that an employer’s decision to remove an employee from her job and give her an opportunity to search for another position within the company is an adverse employment action. In other words, if it is done for a discriminatory reason, doing so can violate the New Jersey Law Against Discrimination (“LAD”).

Kathleen Fowler, who has epilepsy and is a cancer survivor, worked for AT&T for 30 years and is over 60 years old. In December 2015, AT&T announced a plan to reduce the Technology Planning and Engineering business unit for which Ms. Fowler worked by eliminating numerous positions. AT&T placed the employees impacted by this reduction in force on “surplus status,” meaning they were given the choice to accept a severance package and leave the company, or remain employed for 60 days to search for another job within AT&T. If an employee on surplus status was not offered another position within those 60 days, then she would receive the severance benefits.

Ms. Fowler elected to go onto surplus status. During that period, she was offered two positions, one in New Jersey and the other in Texas. Even though she was better qualified for the position in Texas, Ms. Fowler accepted the job as a senior system engineer because it was in New Jersey and she did not want to interrupt her cancer treatment.

New Jersey Requires Hiring Preferences for Employees Terminated Due to Workplace Injury

November 2, 2021 | by Jonathan I. Nirenberg

New Hiring Preference

A recent amendment to the New Jersey Workers’ Compensation statute now requires many employers to give a hiring preference to employees who lose their jobs as a result of a workplace injury.

More specifically, the worker’s compensation statute now requires employers to provide a “hiring preference” to employees who have reached “maximum medical improvement” after a work-related injury and cannot return to their former job, for “any existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.”

New Jersey Law Against Discrimination Permits Punitive Damages Against State and the Local Government

August 23, 2021 | by Jonathan I. Nirenberg

Earlier this month, in Pritchett v. State, the New Jersey Supreme Court confirmed that the state of New Jersey and municipalities remain subject to punitive damages under the New Jersey Law Against Discrimination (“LAD”).

Shelley Pritchett worked for the State of New Jersey as a Senior Corrections Officer at the Juvenile Justice Center (“JJC”). In 2011, Officer Pritchett suffered back, knee and neck injuries when she broke up a fight between two inmates. She went on a workers’ compensation leave as a result. Her doctor subsequently diagnosed her with multiple sclerosis. As a result, she sought to extend her medical leave by approximately 4 ½ months. However, the JJC denied her request, and instead offered to extend her leave by only about a month and told her that if she was not medically cleared to return to work by then she would have to resign.

Officer Pritchett was unable to return to work within the additional time JJC had granted. However, she told the JJC she did not want to resign. In response, JJC told her that if she did not resign by the end of the week, it would initiate disciplinary proceedings to fire her, and she would lose her pension. In response, Officer Pritchett applied for a disability retirement.

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

June 8, 2021 | by Jonathan I. Nirenberg

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”).

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:

New Jersey Law Prohibits Discrimination for Prescribed Off-Duty Medical Marijuana Use

March 10, 2020 | by Jonathan I. Nirenberg

Today, in Wild v. Carriage Funeral Holdings, Inc., the New Jersey Supreme Court ruled that employers cannot discriminate against employees for using prescribed medical marijuana while off-duty. Rather, doing so constitutes disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

The New Jersey Supreme Court affirms a March 17, 2019 Appellate Division opinion. The Supreme Court’s opinion makes it clear that the Compassionate Use Act does not require employers to accommodate the use of medical marijuana in the workplace. It also noted that the Compassionate Use Act does not permit anyone to operate or control any “vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.” But the Supreme Court’s opinion holds that the LAD prohibits employers from discriminating against employees for using prescribed medical marijuana outside of work.

For more information about the case, please see my previous article: New Jersey Employers Can’t Discriminate for Medical Marijuana Use Outside of Work.

Termination Three Weeks After Medical Leave Supports Disability Discrimination Claim

May 1, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division demonstrates that under the right circumstances an employee can prove disability discrimination from the fact that her employer fired her shortly after she had surgery.

Ada Caballero worked for Cablevision Systems Corporation for 15 years. In 2013, she was divorced. A few months after her divorce was finalized, Ms. Caballero submitted a copy of the divorce judgment to the company’s human resources department. However, Cablevision did not remove her ex-husband from its health insurance plan.

On Ms. Caballero’s 2014 performance evaluation, Cablevision gave her a rating of “strong performance.”