NJ STATE PBA LEGAL CORNER
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
State and federal courts in New Jersey continue to broaden – almost exponentially – possible causes of action and remedies for employees claiming various civil rights violations. These theories expand the scope of persons entitled to sue for a violation, increase the types of adverse employment actions which can support a claim for damages and relax the timeframe for bringing such cases. In each instance, these theories can have major consequences on workplace behavior, including rank-and-file law enforcement officers and their supervisors. Two recent cases, one from the New Jersey Supreme Court and the other from the Third Circuit Court of Appeals governing New Jersey, illustrate these expansions of employee rights.
Richter v Oakland Board of Education, decided by the New Jersey Supreme Court in June 2021, involved a science teacher who was a diabetic. At the start of the 2012-2013 school year, Richter learned that her lunch was scheduled for 1 p.m. Believing that would negatively affect her blood sugar levels, Richter asked the defendant to adjust her schedule so she could eat lunch during the period beginning at 11:30 a.m. The school principal told Richter he would “look into it.” Despite further communications, no change was made. Richter attended to her cafeteria duties at the later time and ingested glucose tablets to maintain her blood sugar levels.
On March 5, 2013, before she could eat lunch, Richter suffered a hypoglycemic reaction in front of her students. She had a seizure, lost consciousness and struck her head on a lab table and the floor, causing extensive bleeding. Richter was transported to a hospital for treatment. Prior to that, she had never passed out at work.
Richter filed a workers’ compensation claim for the work-related injuries. She recovered for her medical bills and disability benefits. But more than two years later, she filed a civil rights claim seeking damages for the school’s failure to accommodate her diabetic condition.
The Board of Education moved for partial summary judgment to dismiss her suit, claiming that Richter’s bodily injury damage claim was barred by the exclusive remedy provision of the Workers Compensation Act (WCA). Generally, recovery for workplace injuries is governed exclusively by the WCA unless there is intentional wrongdoing. The motion judge held that the WCA’s “intentional wrong” exception did not bar Richter’s civil rights claim for bodily injury and denied the board’s motion.
Shortly thereafter, defendants moved for summary judgment again, this time alleging that Richter failed to establish the elements of a failure-to-accommodate claim under the New Jersey Law Against Discrimination (LAD) because she did not suffer an “adverse employment action.” Traditionally, this requires proof of termination, suspension or other loss of pay to support a civil rights claim. A trial judge agreed and dismissed the case. But the appellate division reversed the grant of summary judgment in favor of defendants and the Supreme Court affirmed. In other words, the case was reinstated, and Richter was allowed to continue to pursue her LAD claim.
On the issue of whether a plaintiff may bring a claim for failure to accommodate a disability when there has been no adverse employment action, the court found that although the LAD does not explicitly address a reasonable accommodation requirement or claim, New Jersey courts have uniformly held that the LAD nevertheless requires an employer to reasonably accommodate an employee’s disability unless doing so would impose undue hardship on the operation of the business.
Historically, courts held that an adverse employment consequence was a critical prerequisite for filing a disability discrimination case. However, the court in Richter concluded that an adverse employment action is not necessary to demonstrate a failure to accommodate a disability. Relying on federal law construing the Americans with Disabilities Act, the Richter case effectively holds that an employee may bring an LAD claim for failure to accommodate a disability without the need to demonstrate that an adverse employment action resulted from the denial of the requested accommodation. As the court put it, “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.”
The court also rejected the employer’s claim that the WCA was Richter’s only remedy. Based on a long history of liberally construing the LAD, and a strong public policy to eliminate workplace discrimination, the court emphasized that amendments to the statute in 1990 provided common law tort remedies “in addition to any provided by this act or any other statute.” The court rejected the school board’s contention that such common law remedies may not include damages that would amount to a double recovery through a successful WCA claim. Instead, the court held an employer may obtain an offset of any ADA award for benefits paid under the WCA. Thus, if a jury award in an ADA case equals or exceeds the amount paid for medical and disability benefits, a lien for the amount of those benefits would attach in favor of the employer. However, the jury may not include fees and costs paid to plaintiff’s workers’ compensation attorney.
In another expansion of civil rights claims, the Third Circuit confronted the question of whether federal civil rights laws allow an employee to bring a lawsuit claiming retaliation for complaining about derogatory comments directed at a third party, rather than the employee himself. In Kengerski v. Allegheny County, decided in July, a Pennsylvania corrections officer mentioned to a co-worker that he and his wife might shortly be serving as guardians for their niece’s young child, who was bi-racial. After looking at a photograph of the child, the co-worker remarked that the officer would be “carrying around another little monkey” like another officer whose child was biracial. The officer complained to superiors claiming that the comment, while directed at the niece and child, also created a hostile work environment for him.
Several months later, the officer was fired, and he contended that his termination was in retaliation for complaining about the previous comments made by the co-worker. The trial court dismissed the case, contending that the officer did not have “standing” to raise the issue, because the offensive comments were directed at the niece, rather than at him. On appeal, however, the court reversed, concluding that whether the comments were directed specifically at the employee, or at someone with whom the employee associates, federal civil rights law extends potential damages in either setting. In effect, a retaliation claim can be based upon complaints that an employer took action against an employee for associating with, and complaining about, derogatory comments directed at a third party.
As we have noted in discussing similar cases in the past, these holdings do not mean that these claims will automatically succeed before a jury. Instead, they simply expand the scope of cases which can go forward, with the jury deciding whether the offensive comments were made and, if made, whether the officer suffered retaliation as a result of complaining about them.
But the bigger picture, of course, is the ever-increasing breadth of civil rights law claims that can be brought by public or private employees, whether in law enforcement or other occupations. Law enforcement officers can certainly benefit from these expanded rights if they are in similar situations. The flip side is that supervisors and law enforcement agencies are exposed to greater liability if they do not take appropriate steps to address these types of issues when they arise. And while courts have held that civil rights laws are not intended to serve as civility codes at work, it should be obvious that these expanded theories of acceptable workplace behavior will inevitably result in litigation.