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Can I Have a Viable Disability Discrimination Case in New Jersey, Even Without an ‘Adverse Employment Action’?

It is a general rule of the law that, if you have a disability (or a perceived disability) and your employer imposes an adverse employment action against you (such as termination, demotion, reduction in pay, reduction in hours, reassignment of duties, etc.) because of that disability, then you can pursue a disability discrimination action.

However, what if your employer never inflicted any of those things against you? Does the absence of that fact mean that you are “out of luck” when it comes to seeking much-needed compensation for disability discrimination? According to a recent Appellate Division ruling, the answer is “no.” This important employee victory in court is a reminder that, if you think you’ve been harmed on the job due to your disability, you should always take the time to contact an experienced New Jersey employment attorney and discuss the options that may exist for you.

In that recent case, M.R. was a middle school teacher in a school district in Bergen County who had Type I diabetes. During the 2012-13 school year, her schedule called for her to take lunch starting at 1:05 pm. The teacher believed that, due to the drugs she took for her diabetes, eating lunch that late could negatively affect her blood sugar levels.

Reportedly, she asked the principal for an adjustment to her schedule, but the principal made no changes. The teacher began taking glucose pills during the 12:00 hour to maintain her blood sugar levels. Despite her efforts, though, the teacher experienced a “hypoglycemic event” in front of her sixth-period class one day. She suffered a seizure and fainted. In the fall, she hit a lab table and the floor, causing her to bleed extensively.

The harm from the fall was severe. The teacher suffered a “total loss of smell; meaningful loss of taste; dental and facial trauma; tinnitus; insomnia; tingling in her fingers; extraction of her right front tooth; implantation of a dental bridge, and bone grafts; altered speech; pain in neck and radiation to posterior shoulder [and] postconcussion syndrome.”

The teacher sued the employer for disability discrimination based on the school’s failure to accommodate her diabetic condition. The school board asked the court to throw out the case, arguing that, because it had never taken an adverse employment action against the teacher, it could not be held liable for discrimination.

An employee who ‘soldiers on’ and suffers harm may have a valid discrimination case

The appeals court clarified that the employer’s argument did not accurately reflect the way the law works in New Jersey. The Law Against Discrimination (LAD) does not always require that an employee establish proof of an adverse employment action, especially in disability discrimination cases, which “are different from other kinds of discrimination claims, for several reasons.” In 2008, the Supreme Court released an opinion that concluded that “that under the right set of facts, the LAD might cover a disability discrimination claim for failure to accommodate absent an adverse employment action.” Specifically, if an employer’s “failure to accommodate forced the employee to soldier on without a reasonable accommodation,” and that soldiering on harmed the employee, then “there need not be proof of adverse employment action.”

Some sets of facts, the Supreme Court stated, “cry out for a remedy,” even in the absence of any adverse employment action. That was the circumstance in this teacher’s case, and she should have been allowed to take her case to trial, according to the Appellate Division decision.

Each area of discrimination law comes with its own differences and nuances. In this case, even though most successful employment discrimination cases require adverse employment actions, this teacher had a valid case to take to trial, even though her case lacked any adverse employment actions. Each case can be different, and each case requires the skill of an experienced discrimination attorney. The knowledgeable New Jersey employment attorneys at Phillips & Associates are here to help, having handled a wide array of employment discrimination cases, including disability discrimination actions. Contact us online or call (609) 436-9087 today to set up a free and confidential consultation and to find out our diligent attorneys can help you.

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