When Inaction is Enough: Appeals Court Holds that Adverse Employment Action Not Essential Element of Failure to Accommodate Claim

An employee does not have to demonstrate that she suffered an adverse employment action to prevail on a failure to accommodate claim under the New Jersey Law Against Discrimination (NJLAD), the Appellate Division ruled last month in Richter v. Oakland Board of Education.

Facts

Plaintiff, Mary Richter, a middle school science teacher for the Oakland School District, is a Type I diabetic. At Valley Middle School where she taught, students were scheduled to eat lunch during fifth and sixth periods, between 11:31 a.m. and 1:02 p.m. Teachers were assigned to cafeteria duty and hall monitoring during these periods, and some teachers were scheduled to have their lunch during seventh period, between 1:05 p.m. and 1:49 p.m.

Richter alleged that she requested an accommodation in the form of an earlier lunch, during fifth or sixth period. She informed the Principal of Valley Middle School, Gregg Desiderio, that her sugar levels dropped mid-day due to the medication she was taking, and that waiting until after 1:00 to eat her meal would have a negative impact on her blood sugar. Principal Desiderio changed Richter’s lunch period from seventh period to fifth period during the second marking period of the school year.

However, the following marking period, Richter was again scheduled to have lunch during seventh period on certain days. When Richter brought this to Desiderio’s attention, he told her that he could not schedule her for an earlier lunch because he needed a third teacher to monitor the students’ earlier lunch periods, and had scheduled her to teach science during sixth period. Desiderio suggested that Richter sit down and have a snack if she was not feeling well.

The Vice Principal of the Middle School told Richter that she could skip cafeteria duty and her union president told her she could not be disciplined for skipping cafeteria duty. Despite these assurances from other school personnel, Richter believed that her schedule had to be formally changed and approved by Desiderio. On the days she was scheduled for the later seventh period lunch, Richter ingested glucose tablets to help keep her sugar elevated until she could eat lunch at 1:05 p.m.

Several weeks into the marking period, towards the end of her sixth period science class, Richter experienced a hypoglycemic event which caused her to have a seizure and faint, striking her head on a lab table and floor. Richter suffered permanent physical injuries as a result of the fall, including loss of smell, taste, dental and facial trauma, tinnitus, insomnia, tingling in her fingers, extraction of her right front tooth and implantation of a dental bridge, bone grafts, altered speech, radiating pain in her neck and shoulder, and vertigo.

The Trial Court’s Decision

Richter sued the Oakland Board of Education and Desiderio for failing to accommodate her medical condition under the NJLAD. The trial court dismissed Richter’s case at summary judgment, holding that an adverse employment action was one of the required elements of disability discrimination based upon a failure to accommodate claim under the NJLAD. The Court noted that Richter was not fired or reassigned to a less favorable position as a result of her request for an accommodation and therefore could not maintain her discrimination claim.

The Appellate Division’s Decision

On appeal, Richter argued that if she could prove the District failed to accommodate her, that failure equated to an adverse employment action and she could thus satisfy that standard. While the Appellate Division rejected Richter’s argument that she suffered an adverse employment action, it held that its absence was not fatal to her claim.

Finding that the language of the NJLAD did not explicitly require that an employee demonstrate an adverse employment action, the Court relied on two New Jersey Supreme Court decisions to support its ruling. In both cases, the state’s highest court projected that there could be a set of circumstances under which an employer’s failure to accommodate “forced the employee to soldier on without a reasonable accommodation,” and while falling short of a hostile work environment that would force an employee to resign, the circumstances “would cry out for a remedy.” The Appellate Division found that Richter’s case was one that satisfied that standard and reinstated her failure to accommodate claim in the interest of justice.

Bottom Line

The Court’s decision makes clear that employers are expected to actively engage in the interactive process with employees who request an accommodation in the workplace. Should a physical injury result that could have been prevented by accommodating an employee’s reasonable request for an accommodation of a medical condition, the employer may be liable for damages even if the employee did not suffer a formal adverse employment action.

In this case, it was shown that the key decision-maker was aware of the employee’s request and the medical reason behind it, but did not appear to have any meaningful communications with the employee as to whether or not her request was too burdensome for the District or whether it was a request that could be granted in light of the circumstances. Liability based upon a claim that an employer failed to accommodate a real or perceived disability will not solely hinge on an affirmative adverse act by the employer, but may attach as a result of inaction as well.

For more information regarding this decision and best practices, please contact John C. Petrella, Esq., Chair of the Firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Chair of the Firm’s Human Resources Counseling & Compliance Practice Group, at dmastellone@genovaburns.com or 973-533-0777.