The court had not addressed this novel issue head-on in prior decisions, either because the plaintiffs in prior cases had suffered adverse employment action or because they failed to establish other required elements of their failure to accommodate claims.

On June 8, 2021, the New Jersey Supreme Court decided Richter v. Oakland Board of Education and issued a unanimous opinion that clarified the required elements of a cause of action for failure to accommodate a disability under the Law Against Discrimination (LAD).

Richter’s LAD Claim

The plaintiff in Richter was a public school teacher who is diabetic. When she received her teaching schedule for the first marking period of the year, she was concerned that she would not have an opportunity to eat lunch until late in the day, which would negatively affect her blood sugar. She contacted the principal of the school to ask for a scheduling change to accommodate her medical condition. Although the principal initially told her that he would “look into it,” he did not change her schedule for the first marking period, nor did he promptly respond to her follow-up requests. During the second marking period, the principal changed the plaintiff’s schedule to accommodate her needs, but he again assigned her a late lunch for the third marking period. The principal told her that she could skip her assigned cafeteria duty earlier in the school day if she was not feeling well, but he failed to follow up on her request to put this accommodation in writing. The plaintiff did not take advantage of the principal’s offer to skip cafeteria duty before her scheduled lunch period, because she feared she would be held responsible for any incident that might take place in her absence. During the third marking period, the plaintiff suffered a hypoglycemic event while teaching an afternoon class. She lost consciousness and sustained serious injuries when she struck her head on a table and the floor.

At issue in the case was whether the plaintiff was required to prove as an element of her failure to accommodate claim that she had been subject to adverse employment action. When asserting a disability discrimination claim based on failure to provide a reasonable accommodation, the New Jersey Supreme Court ruled a plaintiff must show: (1) that he or she is an individual with a disability or who is perceived as having a disability; (2) that he or she is qualified to perform the essential functions of a job with or without reasonable accommodations; and (3) that the defendant failed to reasonably accommodate the disability. In Richter, the defendants argued that plaintiff must prove a fourth element―that she was subjected to adverse employment action. Because Richter had not been disciplined, demoted or terminated, the defendants maintained that she could not make out a prima facie failure to accommodate claim under the LAD.

The Richter court ultimately rejected the defense’s argument and sided with the plaintiff, concluding that “an employer’s failure to accommodate is itself an actionable harm” and that evidence of further adverse employment actions is not a necessary element of a failure to accommodate claim under the LAD. “The wrongful act for purposes of a failure-to-accommodate claim,” wrote Justice Jaynee LaVecchia, “is the employer’s failure to perform its duty, not a further adverse employment action that the employee must suffer.” The court reasoned that if plaintiffs were required to prove that they were subject to adverse employment actions, then employers would be free to deny reasonable accommodations as long as they kept employees with disabilities on the payroll. The court remarked that allowing such circumstances would frustrate the purposes of the LAD.

The court had not addressed this novel issue head-on in prior decisions, either because the plaintiffs in prior cases had suffered adverse employment action or because they failed to establish other required elements of their failure to accommodate claims. The Richter court pointed to a number of state and federal decisions in which courts previously identified the elements of a failure to accommodate claim, noting that in those cases, the courts either did not require adverse employment action as a necessary element of the claim or considered the act of failing to accommodate as the adverse action.

The Interplay Between the LAD and Workers’ Compensation Act (WCA)

In addition to clarifying the required elements of a prima facie case for a failure to accommodate claim, the Richter court also addressed the interplay between the LAD and the WCA. Under the WCA’s exclusive remedy provision, an employee who suffers an injury on the job and receives benefits under the workers’ compensation scheme generally is barred from suing the employer for injuries unless he or she can prove that the employer committed an intentional wrong.

In Richter, the defendants argued that the plaintiff could not sue the school under the LAD because she had already been afforded a remedy under the WCA. However, the court rejected this defense and held that the WCA did not preclude plaintiff from bringing a claim under the LAD. In so ruling, the court relied upon a provision in the LAD that states that “[a]ll remedies available in common law tort actions shall be available to prevailing plaintiffs” and that “[t]hese remedies are in addition to any provided by this act or any other statute.” (emphasis added). Thus, the court concluded that the remedies afforded under the LAD are in addition to those allowed by the WCA. The court reasoned that the WCA and the LAD are not at cross-purposes, because the WCA is designed to provide prompt compensation for personal injuries that arise out of industrial life, while the LAD is designed to remediate workplace discrimination. The court concluded that barring LAD claims by plaintiffs who suffer workplace injuries as a result of discrimination would frustrate the broad remedial purposes of the LAD.

What This Means for New Jersey Employers

While the New Jersey Supreme Court’s decision in Richter did not alter the nature of an employer’s responsibility to provide reasonable accommodations to employees with disabilities, the case serves as a reminder to employers of the importance of having an established process for handling requests for reasonable accommodation. As the court emphasized, “an employer’s inaction, silence, or inadequate response to a reasonable accommodation request is an omission that can give rise to a cause of action.” Thus, when employers have reason to believe that an employee may have a disability, it is essential that the employer engage in the interactive process to determine whether the employee has a condition that may require accommodation. Employers should make record of their efforts to engage in a dialogue with employees about possible accommodations that do not pose an undue hardship on the employer. The principal in Richter made some effort to accommodate the plaintiff’s disability, but he ultimately failed to follow through with providing and documenting certain accommodations, which resulted in the plaintiff’s claim surviving the defendants’ motion for summary judgment. The court’s ruling in Richter underscores the importance of having systems in place for documenting and responding to employees’ requests for reasonable accommodations.

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