failure to accommodate claim in New Jersey

2021In Victor v. State, the Court confronted for the first time a dispute over the required elements of a failure-to-accommodate claim where a claimant does not allege an adverse employment action. 203 N.J. 383, 412-13 (2010).

2021We stated in Royster that [t]o establish a failure-to-accommodate claim under the LAD, a plaintiff must demonstrate that he or she (1) “qualifies as an individual with a disability, or [ ] is perceived as having a disability, as that has been defined by statute”; (2) “is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations”; and (3) that defendant “failed to reasonably accommodate [his or her] disabilities.” [ 227 N.J. at 500 (alterations in original) (quoting Victor, 203 N.J. at 410 ).] Clearly a

2024State Police, 227 N.J. 482, 500 (2017) (defining the three elements plaintiff must demonstrate for a failure-to-accommodate claim: (1) the plaintiff has a disability; (2) is able to perform the essential functions of the job with or without an accommodation; and (3) the employer failed to reasonably accommodate the disability).

2021In two later cases -- Royster v. State Police, 227 N.J. 482, 500 (2017), and Caraballo v. City of Jersey City Police Department, 237 N.J. 255, 267-68 (2019) -- the Court recited the elements of a failure-to- accommodate claim without including adverse employment action as a requirement, but did not expressly hold that an adverse employment action is not an element of an LAD claim for failure to accommodate. (pp. 18-21) 3.

2025Here, as in Tynan, the employee's failure-to-accommodate claim "should not have been dismissed on summary judgment and must be determined by a jury." Id. at 404 ; see also Taylor, 184 F.3d at 318 ("where there is a genuine dispute about whether 15 We are unpersuaded by defendant's reliance on Jones v. Aluminum Shapes, Inc., 339 N.J.

2021As Victor noted, two earlier cases implicitly suggested that an employee need not suffer an adverse employment consequence. 203 N.J. at 413-14 (discussing Tynan v. Vicinage 13 of Superior Ct., 351 N.J.

2021In two later cases -- Royster v. State Police, 227 N.J. 482, 500 (2017), and Caraballo v. City of Jersey City Police Department, 237 N.J. 255, 267-68 (2019) -- the Court recited the elements of a failure-to- accommodate claim without including adverse employment action as a requirement, but did not expressly hold that an adverse employment action is not an element of an LAD claim for failure to accommodate. (pp. 18-21) 3.

2021Two years later, in Caraballo v. City of Jersey City Police Department, we again recited the elements of a failure-to-accommodate claim without including adverse employment action as a requirement. 237 N.J. 255, 267-68 (2019).

2019Super. 451 , 459-61, 718 A.2d 1230 (Law Div. 1998), "seems to equate [that] the failure to accommodate with an unlawful employment practice, is included as part of the court's explanation about why the McDonnell Douglas 3 burden-shifting framework is not useful [and unnecessary] in the context of a failure to accommodate claim." Id. at 413-14, 4 A.3d 126 .

2008When examining a failure to accommodate claim, courts have limited the proofs to the first three elements of a prima facie discrimination claim "[b]ecause the fourth element's function is to allow an inference to be drawn of disparate treatment, the plaintiff need only establish it as to the discrimination claim, and not as to the reasonable accommodation claim." Leshner, supra, 113 F.Supp. 2d at 692 ; see also LaResca v. AT & T, 161 F.Supp. 2d 323, 329 (D.N.J.2001); Van de Pol v. Caesars Hotel Casino, 979 F.Supp. 308, 312 (D.N.J.1997); Bosshard, supra, 345 N.J.Super. at 91, 783 A. 2d 731 ; Se

2025Here, as in Tynan, the employee's failure-to-accommodate claim "should not have been dismissed on summary judgment and must be determined by a jury." Id. at 404 ; see also Taylor, 184 F.3d at 318 ("where there is a genuine dispute about whether 15 We are unpersuaded by defendant's reliance on Jones v. Aluminum Shapes, Inc., 339 N.J.

2010As the court explained: in order for a plaintiff to establish a prima facie case of discrimination under the ADA, the plaintiff must show: “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” [Taylor, supra, 184 F.3d at 306 (quoting Gaul v. Lucent Techs., 134 F.36 576, 580 (3d Cir.1998) (citation omitted)).] The Taylor decision, therefore, did not divorce fa

2025To prove a failure to accommodate claim against an employer, a plaintiff must demonstrate that he or she: (1) "had a [NJ]LAD handicap; (2) [were] qualified to perform the essential functions of the job, with our without accommodation; and (3) suffered an adverse employment action because of the handicap." Ibid.

2008When examining a failure to accommodate claim, courts have limited the proofs to the first three elements of a prima facie discrimination claim "[b]ecause the fourth element's function is to allow an inference to be drawn of disparate treatment, the plaintiff need only establish it as to the discrimination claim, and not as to the reasonable accommodation claim." Leshner, supra, 113 F.Supp. 2d at 692 ; see also LaResca v. AT & T, 161 F.Supp. 2d 323, 329 (D.N.J.2001); Van de Pol v. Caesars Hotel Casino, 979 F.Supp. 308, 312 (D.N.J.1997); Bosshard, supra, 345 N.J.Super. at 91, 783 A. 2d 731 ; Se

2025State Police, 227 N.J. 482, 500 (2017)) (internal quotation marks omitted). "[I]f an employer reasonably determines that [a disabled] employee 'cannot presently perform the job even with an accommodation, then the employer need not attempt reasonable accommodation.'" A.D.P v. ExxonMobil Research & Eng'g Co., 428 N.J.

2025Here, as in Tynan, the employee's failure-to-accommodate claim "should not have been dismissed on summary judgment and must be determined by a jury." Id. at 404 ; see also Taylor, 184 F.3d at 318 ("where there is a genuine dispute about whether 15 We are unpersuaded by defendant's reliance on Jones v. Aluminum Shapes, Inc., 339 N.J.

2025Reasonable accommodation "refers to the duty of an employer to attempt to accommodate the physical disability of the employee, not to a duty on the part of the employer to acquiesce to the disabled employee's requests for certain benefits or remuneration." Raspa v. Office of Sheriff of City of Gloucester, 191 N.J. 323, 339 (2007). "[A]n employee must possess the bona fide occupational qualifications for the job position that employee seeks to occupy in order to A-1553-22 12 trigger an employer's obligation to reasonably accommodate the employee to the extent required by the LAD." Id. at 327 .

2025Reasonable accommodation "refers to the duty of an employer to attempt to accommodate the physical disability of the employee, not to a duty on the part of the employer to acquiesce to the disabled employee's requests for certain benefits or remuneration." Raspa v. Office of Sheriff of City of Gloucester, 191 N.J. 323, 339 (2007). "[A]n employee must possess the bona fide occupational qualifications for the job position that employee seeks to occupy in order to A-1553-22 12 trigger an employer's obligation to reasonably accommodate the employee to the extent required by the LAD." Id. at 327 .

2021Comm’rs, 979 F.3d 784, 792 (10th Cir. 2020) (en banc).

2021A. “The LAD prohibits employment discrimination on the basis of a disability.” Potente v. County of Hudson, 187 N.J. 103, 110 (2006) (citing N.J.S.A. 10:5-4.1, -29.1).

2021If the employee cannot perform the essential functions of the job because of the disability, "then the court must consider whether reasonable accommodations would enable the person to perform those functions; however, an accommodation is not reasonable if it imposes undue financial and administrative burdens or requires fundamental changes in the nature of the employment." Svarnas v. AT&T Commc'ns., 326 N.J.

2021In other words, it would verge on the illogical to require failure-to-accommodate plaintiffs to establish that their employer acted adversely toward them -- when the fundamental nature of the claim is that the employer failed to act. [Id. at 797 (citation omitted).] 24 See also Garrison v. Dolgencorp, LLC, 939 F.3d 937, 941 (8th Cir. 2019). 3 C.

2017As the trial judge acknowledged in her summary judgment opinion, “[t]he requirements for failure to accommodate claims under New Jersey’s LAD have been interpreted in accordance with the Americans with Disabilities Act.” (Quoting Armstrong v. 20 Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246, n.12 (3d Cir. 2006)).5 To establish a failure-to-accommodate claim under the LAD, a plaintiff must demonstrate that he or she (1) “qualifies as an individual with a disability, or [] is perceived as having a disability, as that has been defined by statute”; (2) “is qualified to perform the essential funct

2017As the trial judge acknowledged in her summary judgment opinion, “[t]he requirements for failure to accommodate claims under New Jersey’s LAD have been interpreted in accordance with the Americans with Disabilities Act.” (Quoting Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246, n.12 (3d Cir. 2006)). 5 To establish a failure-to-accommodate claim under the LAD, a plaintiff must demonstrate that he or she (1) “qualifies as an individual with a disability, or [] is perceived as having a disability, as that has been defined by statute”; (2) “is qualified to perform the essential functio

2017The Administrative Code mandates that an employer “consider the possibility of reasonable accommodation before firing, demoting or refusing to hire or promote a person with a disability on the grounds that his or her disability precludes job performance.” N.J.A.C. 13:13-2.5(b)(2); see also Viscik, supra, 173 N.J. at 19-20 (noting that reasonable accommodation arises as issue in disability discrimination cases in two instances: where plaintiff affirmatively pleads failure to accommodate and where employer defends on grounds that employee was terminated due to inability to perform job). 21 We ha

2017The Administrative Code mandates that an employer “consider the possibility of reasonable accommodation before firing, demoting or refusing to hire or promote a person with a disability on the grounds that his or her disability precludes job performance.” N.J.A.C. 13:13-2.5(b)(2); see also Viscik, supra, 173 N.J. at 19-20 (noting that reasonable accommodation arises as issue in disability discrimination cases in two instances: where plaintiff affirmatively pleads failure to accommodate and where employer defends on grounds that employee was terminated due to inability to perform job). 21 We ha

2012See, e.g., Randolph v. Rodgers, 170 F. 3d 850 , 858 (8th Cir.1999) ("[I]t is true that public entities [such as prison facilities] are not required to guess at what accommodations they should provide...."); In re: Reasonable Testing Accommodations of *452 LaFleur, 722 N.W. 2d 559, 562 (S.D.2006) (stating that to prevail on a failure to accommodate claim against an educational institution, a plaintiff "`must show (1) that [he] is disabled, (2) that [his] requests for accommodations [were] reasonable, and (3) that those requests have been denied'") (quoting D'Amico v. N.Y.

2012See, e.g., Randolph v. Rodgers, 170 F. 3d 850 , 858 (8th Cir.1999) ("[I]t is true that public entities [such as prison facilities] are not required to guess at what accommodations they should provide...."); In re: Reasonable Testing Accommodations of *452 LaFleur, 722 N.W. 2d 559, 562 (S.D.2006) (stating that to prevail on a failure to accommodate claim against an educational institution, a plaintiff "`must show (1) that [he] is disabled, (2) that [his] requests for accommodations [were] reasonable, and (3) that those requests have been denied'") (quoting D'Amico v. N.Y.

2012State Bd. of Law Exam'rs, 813 F.Supp. 217, 221 (W.D.N.Y.1993)); Lindberg v. Livonia Pub.

2010Concluding, however, that proof of an adverse employment action is a required element of a failure to accommodate claim under the LAD, id. at 617 , 952 A.2d 493 , the Appellate Division rejected the trial court’s reasoning that an adverse employment consequence “is presumed by the failure to accommodate or that plaintiffs claimed psychological suffering unequivocally qualifies.” Ibid.

2010Concluding, however, that proof of an adverse employment action is a required element of a failure to accommodate claim under the LAD, id. at 617 , 952 A.2d 493 , the Appellate Division rejected the trial court’s reasoning that an adverse employment consequence “is presumed by the failure to accommodate or that plaintiffs claimed psychological suffering unequivocally qualifies.” Ibid.

2010See Nawrot v. CPC Int'l, 259 F.Supp.2d 716 (N.D.Ill. 2003).

2010See, e.g., Lavia v. Pennsylvania, 224 F.3d 190 , 203-04 (3d Cir.2000) (relying on “most penetrating analysis” of ADA’s constitutionality; citing Erickson v. Bd. of Governors, 207 F.3d 945 (7th Cir.2000) and Stevens v. Ill.

2008See Clowes, supra, 109 N.J. at 593-94 , 538 A. 2d 794 (alcoholism qualifies as handicap); Harris, supra, 353 N.J.Super. at 44 , 801 A. 2d 397 (reversed summary judgment finding that plaintiff who had been treated for breast cancer was not "handicapped" under the LAD); Tynan, supra, 351 N.J.Super. at 398-99 , 798 A. 2d 648 (post-traumatic stress disorder created an accommodatable handicap); Bosshard, supra, 345 N.J.Super. at 85, 783 A. 2d 731 (when heroin addiction may be a handicap); A.B.C. v. XYZ Corp., 282 N.J.Super. 494, 508 , 660 A. 2d 1199 (App.Div.1995) (conduct of a criminal nature is n

2008See Clowes, supra, 109 N.J. at 593-94 , 538 A. 2d 794 (alcoholism qualifies as handicap); Harris, supra, 353 N.J.Super. at 44 , 801 A. 2d 397 (reversed summary judgment finding that plaintiff who had been treated for breast cancer was not "handicapped" under the LAD); Tynan, supra, 351 N.J.Super. at 398-99 , 798 A. 2d 648 (post-traumatic stress disorder created an accommodatable handicap); Bosshard, supra, 345 N.J.Super. at 85, 783 A. 2d 731 (when heroin addiction may be a handicap); A.B.C. v. XYZ Corp., 282 N.J.Super. 494, 508 , 660 A. 2d 1199 (App.Div.1995) (conduct of a criminal nature is n

2008When examining a failure to accommodate claim, courts have limited the proofs to the first three elements of a prima facie discrimination claim "[b]ecause the fourth element's function is to allow an inference to be drawn of disparate treatment, the plaintiff need only establish it as to the discrimination claim, and not as to the reasonable accommodation claim." Leshner, supra, 113 F.Supp. 2d at 692 ; see also LaResca v. AT & T, 161 F.Supp. 2d 323, 329 (D.N.J.2001); Van de Pol v. Caesars Hotel Casino, 979 F.Supp. 308, 312 (D.N.J.1997); Bosshard, supra, 345 N.J.Super. at 91, 783 A. 2d 731 ; Se