In a case involving a claim for failure to accommodate under the NJ Law Against Discrimination (LAD), the Appellate Division recently held that the plaintiff did not need to demonstrate an adverse employment action to establish a prima facie case of a failure to accommodate claim under the LAD. The Court also ruled that the Worker’s Compensation Act did not bar her bodily injury claim, but that the defendant should receive a credit based upon the amount it paid in her claim in accordance with N.J.S.A. 34:15-40. Richter v. Oakland Board of Education, et al., – N.J. Super. – (App. Div. 2019).
Plaintiff, Mary Richter, was a middle school teacher who suffered from Diabetes. She alleged that she fainted while teaching due to low blood sugar levels when she was unable to eat lunch because the defendant failed to grant her an accommodation to eat lunch earlier.
Plaintiff’s case was dismissed because she failed to establish an adverse employment action in her claim for failure to accommodate under the LAD. The Appellate Division reversed.
Plaintiff alleged serious and permanent injuries as a result of falling down including, but not limited to, the loss of smell, meaningful loss of taste and dental and facial trauma. She filed a worker’s compensation claim and the defendant Board of Education paid over $18,000.00 in medical bills, roughly $10,000.00 in temporary disability benefits and $77,000.00 for the permanent injuries she suffered.
The Appellate Division first held that even though she presented no evidence of an adverse employment action due to the defendant’s failure to reasonably accommodate her diabetes disability, her claim could proceed. While an adverse employment action has generally been recognized as an element of a prima facie case of disability discrimination for failure to accommodate, the Appellate Division held that this case fell within the unusual situation where the employee could demonstrate that the failure to accommodate forced the employee to “soldier on” without a reasonable accommodation and there was no need to establish an adverse employment action because the circumstances cried out for a remedy.
The defendant argued that plaintiff’s claim should be dismissed under the exclusive remedy provision of the Worker’s Compensation Act at N.J.S.A. 34:15-8. However, considering plaintiff’s allegations in the light most favorable towards the non-moving party, the Court concluded that defendant had intentionally refused her accommodation request and it was substantially certain that she could suffer an event that could cause bodily injury. Therefore, her claim was protected under the “intentional wrong” exception to the Worker’s Compensation Act.
The Court then held that should defendant be found liable for plaintiff’s bodily injury claim under the LAD, it could assert a lien under N.J.S.A. 34:15-40(b) if the award recovered by plaintiff is the equivalent to or greater than the liability of the employer from the compensation award. Finally, the Court held that plaintiff should be permitted to admit her medical bills and lost wages as evidence before the jury.