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In a recent unpublished decision, New Jersey’s Appellate Division make it clear that an employee does not have to have a severe or permanent impairment to have a viable disability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.

New Federal Protections for Pregnant Employees

July 22, 2023 | by Jonathan I. Nirenberg

Reasonable Accommodations for Pregnancy and Childbirth

On June 27, 2023, a new federal employment law, the Pregnant Workers Fairness Act, went into effect. The Act prohibits employers from:

Denying an employee a reasonable accommodations for pregnancy, childbirth, and related medical conditions unless the employer can show the accommodation would impose an undue hardship on the operation of its business;

Court Reinstates Lawsuit Alleging Employer Searched Cellphone to Seek Justification to Fire Employee

January 10, 2023 | by Jonathan I. Nirenberg

A recent decision by the Third Circuit Court of Appeals allows an employee to proceed with his retaliation claim based on evidence suggesting his employer’s decision to search his cellphone was an excuse to try to find support to fire him in retaliation for asserting claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”) and the Family & Medical Leave Act (“FMLA”).

Joseph Canada is Black and suffers from serious back problems including herniated discs and arthritis. He worked for Samuel Grossi and Sons, Inc. for 10 years. Mr. Canada claims Grossi’s management prevented him from accessing FMLA leave forms, and harassed him when he tried to take time off for his back issues. He eventually obtained the forms on his own, and took FMLA leave.

In March 2019, Grossi had a temporary layoff during which it laid off Mr. Canada for a day. In response, Mr. Canada filed a claim of race and disability discrimination with the United States Equal Opportunity Commission (“EEOC”). In June 2019, Mr. Canada filed a discrimination and retaliation lawsuit against Grossi under Title VII, the ADA and the FMLA.

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 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 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.

Employer Liable for Injury Caused by Failure to Accommodate Employee’s Disability

June 25, 2019 | by Jonathan I. Nirenberg

The New Jersey Law Against Discrimination (“LAD”) requires employers to provide reasonable accommodations to disabled employees to permit them to be able to continue to perform their jobs.

Ordinarily, an employee who brings a discrimination case under the LAD has to prove the discrimination led to an adverse employment action such as being fired, demoted, or passed up for a promotion. However, in a recent published opinion, Richter v. Oakland Board of Education, New Jersey’s Appellate Division ruled that an employee can recover damages for a physical injury caused by the employer’s failure to accommodate her disability without having to prove she suffered an adverse employment action.

Mary Richter is a science teacher for the Oakland Board of Education at Valley Middle School. During the first marking period of the 2012/2013 school year, her lunch period was scheduled to begin at 1:05 p.m. Ms. Richter has Type I diabetes and believed eating her lunch that late in the day would negatively impact her blood sugar levels. Accordingly, she asked her school’s principal, Gregg Desiderio, to allow her to eat her lunch earlier in the day.

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.”

New Jersey Employers Can’t Discriminate for Medical Marijuana Use Outside of Work

April 1, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division recognizes that an employer can violate the New Jersey Law Against Discrimination (“LAD”) if it discriminates against a disabled employee because he uses medically prescribed marijuana to treat a disability outside of the workplace.

Justin Wild worked as a licensed funeral director for Carriage Funeral Holdings, Inc. (“Carriage”). Mr. Wild has cancer. Pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act, Mr. Wild has been prescribed marijuana to help with the associated pain. The Compassionate Use Act decriminalizes the use of marijuana for certain medical reasons including pain relief for individuals with cancer.

In 2016, while working for Carriage, Mr. Wild was in a car accident and had to be taken to the emergency room. He was prescribed pain medication and released from the hospital the same day. At home, Mr. Wild took the pain medication and used medical marijuana.