Civil Model Jury Charge 2.26 failure to
ACCOMMODATe employee with Disability under the New Jersey law Against
Discrimination (Approved 2/2013) model jury charge
Plaintiff
claims that defendant unlawfully failed to accommodate his/her disability. Specifically, plaintiff argues that defendant
should have [insert description of
accommodation at issue, such as “modified his/her job duties” or “modified
his/her work schedule” or “granted him/her a leave of absence” or “transferred
him/her to another open position for which he/she was qualified”, etc.]. Defendant argues that [insert description of defendant’s position, such as “plaintiff did not
have a disability” or “no accommodation would have enabled plaintiff to perform
the essential functions of his/her job” or “it was not aware that plaintiff
needed an accommodation” or “the accommodation plaintiff sought was not
reasonable” or “the accommodation it provided to plaintiff was adequate”, etc.].
To
win his/her case, plaintiff must prove each of the following elements by a
preponderance of the evidence. First, plaintiff
must prove that he/she had a disability.
Second, plaintiff must prove that he/she was able to perform all of the
essential functions of his/her job, either with or without a reasonable
accommodation. Third, plaintiff must
prove that defendant was aware of his/her need for a reasonable
accommodation. Fourth, plaintiff must
prove that there was an accommodation that would have allowed him/her to
perform the essential functions of his/her job.
Fifth, plaintiff must prove that defendant denied him/her accommodation.[1]
To
prove the first element of his/her claim, which is that he/she had a
disability, plaintiff must show that he/she had either (a) a physical condition
caused by injury, birth defect, or illness or (b) a mental, psychological, or
developmental condition that either (i) prevents the normal exercise of any
bodily or mental functions or (ii) can be demonstrated medically or psychologically
by accepted clinical or laboratory diagnostic techniques.[2] Plaintiff’s disability need not be
particularly serious or permanent to qualify under the law.[3]
In
determining whether plaintiff has proven the second element of his/her claim,
which is that he/she was able to perform all of the essential functions of
his/her job, you must consider which job functions were truly essential. Whereas plaintiff bears the burden of proving
that he/she could perform the essential functions of his/her job with or
without reasonable accommodation, if there is a dispute between the parties
about whether a particular job function is essential, defendant bears the
burden of proving that the function is essential.[4]
In
determining whether a job function is essential, you should consider the
following principles:
a)
A function may be essential because the reason the
position exists is to perform the function;
b)
A function may be essential because of the limited
number of employees among whom that work can be distributed; and
c)
A function may be essential because it is highly
specialized and the person doing the job is chosen because of his or her
expertise.
In
deciding whether a job function is essential, you should consider written job
descriptions, the amount of time that the person doing the job spends
performing that particular function, the consequences of not requiring the
person doing the job to perform that particular function, the terms of any
union collective bargaining agreement that applies to the job, and whether
other employees doing that job or similar jobs are required to perform that
particular function.[5]
The
third element that the plaintiff must prove is that defendant was aware of
his/her need for an accommodation. In
many cases, plaintiff will do so by offering evidence that he/she requested an
accommodation from defendant. It is not
necessary that requests for accommodation be in writing or even use the phrase
“reasonable accommodation”.[6] An employee may use plain English and need
not mention any law requiring accommodation.[7] Although there are no magic words that the
employee must use, he/she must make clear to the employer that he/she needs
some assistance in performing his/her job because of his/her disability.[8] However, plaintiff need not prove that he/she
requested an accommodation if he/she can prove that defendant knew about
his/her need for accommodation in some other way.[9]
The
fourth element that plaintiff must prove is that there was an accommodation
that would have allowed him/her to perform the essential functions of his/her
job. Examples of reasonable
accommodation include (a) making facilities used by employees accessible and
usable by people with disabilities, (b) job restructuring, (c) part-time or
other modified work schedules, (d) leaves of absence, (e) getting or modifying
equipment or devices to allow employees with disabilities to do the job, and
(f) transfer to another open position for which the employee with a disability
is qualified.[10]
The
last element that plaintiff must prove is that defendant denied him/her
accommodation. It is important to note
that if more than one accommodation would allow the employee to perform the
essential functions of the job, the employer has the final say to choose
between those effective accommodations, and may choose the less expensive or
less difficult accommodation.[11] If defendant argues that the accommodation
sought by plaintiff would have placed an undue hardship on it, then defendant
has the burden of proving that undue hardship.[12] In determining whether an accommodation would
impose undue hardship on the operation of an employer’s business, you should
consider the following factors: (a) the
overall size of the employer’s business with respect to the number of
employees, number and type of facilities, and size of budget; (b) the type of
the employer’s operations, including the make-up and structure of the
employer’s workforce; (c) the nature and cost of the accommodation needed,
taking into consideration the availability of tax credits and deductions and/or
outside funding; and (d) the extent to which accommodation would involve taking
away an essential function of the job.[13]
In
summary, to win on his/her claim, plaintiff must prove that it is more likely
than not that (1) he/she had a disability; (2) he/she was able to perform all
of the essential functions of his/her job, either with or without a reasonable
accommodation; (3) defendant was aware of his/her need for a reasonable
accommodation; (4) there was an accommodation that would have allowed him/her
to perform the essential functions of his/her job; and (5) defendant denied
him/her accommodation. If you find that
plaintiff failed to prove any of these elements by a preponderance of the
evidence, you must render a verdict in favor of defendant.
[1] In Victor v. State, 203 N.J. 383 (2010), the Supreme Court
declined to decide whether a reasonable accommodation plaintiff must prove an
adverse employment action separate and apart from the failure to accommodate
itself. However, in dictum, the Court
noted that “[t]he LAD’s purposes suggest that we chart a course to permit
plaintiffs to proceed against employers who have failed to reasonably
accommodate their disabilities or who have failed to engage in an interactive
process even if they can point to no adverse employment consequence that
resulted.” Id. at 421.
[2] N.J.S.A. 10:5-5(q).
[3] See, e.g., Viscik v. Fowler Equip. Co.,
173 N.J. 1, 16 (2002) (noting that
“the term ‘handicapped’ in LAD is not restricted to ‘severe’ or ‘immutable’
disabilities”); Enriquez v. West Jersey
Health Systems, 342 N.J. Super.
501, 519 (App. Div. 2001) (observing that LAD “is very broad and does not
require that a disability restrict any major life activities to any degree”); Soules v. Mount Holiness Memorial Park,
354 N.J. Super. 569 (App. Div. 2002)
(holding that plaintiff employee with cancer who needed eight months off from
work to recuperate from surgical removal of kidney was “handicapped” for
purposes of LAD despite fact that disability was temporary).
[4] Sturm v. UAL
Corp., 2000 WL 1300396 (D.N.J. Sept. 5, 2000) (holding under LAD that
“employer bears the burden of establishing the necessity of certain functions
to the job in question”).
[5] These principles are drawn directly from 29 C.F.R. § 1630.2(n), which is the federal
regulation defining “essential functions” under the federal Americans with
Disabilities Act. There is no definition
of “essential functions” in the New Jersey Law Against Discrimination, the New
Jersey regulations promulgated under the statute, or New Jersey state court case
law interpreting the statute.
[6] Tynan v.
Vicinage 13 of Superior Court of New Jersey, 351 N.J. Super. 385, 400 (App. Div. 2002).
[7] Ibid.
[8] Ibid.
[9] See, e.g.,
Lasky v. Borough of Hightstown, 426 N.J.
Super. 68, 78 (App. Div. 2012) (holding that when plaintiff’s need for
accommodation is obvious, there is no requirement that plaintiff request
accommodation before filing suit in order to prevail on failure-to-accommodate
claim); N.J.A.C. 13:13-2.5(b)(2)
(requiring employer to consider reasonable accommodation before firing,
demoting, or refusing to hire or promote person with disability on grounds that
disability precludes job performance).
[10] This list of potential accommodations is drawn from N.J.A.C. 13:13-2.5(b)(1). It is not intended to be exhaustive.
[11] Victor v. State,
203 N.J. 383, 424 (2010).
[12] N.J.A.C.
13:13-2.5(b) (requiring employer to provide reasonable accommodation “unless
the employer can demonstrate that the accommodation would impose an undue
hardship on the operation of its business”).
[13] N.J.A.C.
13:13-2.5(b)(3).
