Traditionally, an adverse employment action—getting disciplined or fired, being denied a raise or promotion, for example—has been a necessary part of a discrimination case. But in the area of disability discrimination, state and federal courts around the country have differed about whether an employee who has been denied a disability accommodation must also prove an adverse employment action. A new state supreme court decision ( won by my former law partner, Gerry Resnick) holds that an employer’s failure to provide reasonable accommodations for disabilities can indeed form the basis for a discrimination claim, even if there has been no adverse employment action.
Mary Richter, a middle school science teacher, had type 1 diabetes. She told the school principal that, in order to keep her blood sugar level up and avoid passing out in class, she needed to eat lunch during 5th period, and she was given a schedule that accommodated her. The next marking period, her lunch was not until 7th period. She went to the principal, who admitted that he had made a mistake but refused to change the schedule.
One day, during her 6th period class, exactly what Ms. Richter had feared came to pass. She had a seizure, lost consciousness, and fell, hitting her head on a lab table and the floor, causing extensive bleeding and serious injuries, including: 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; neck pain; post-concussion syndrome; vertigo; dizziness; severe emotional distress; and decreased life expectancy.
Ms. Richter received workers’ compensation benefits for her injuries, and she also filed a lawsuit against both the school board and the principal claiming disability discrimination, based on denial of a reasonable accommodation for her diabetes. They opposed her suit, claiming that since Ms. Richter had not been fired, demoted, or reassigned, there had not been any adverse employment action. Based on that argument, the trial court dismissed her case.
But her case was reinstated on appeal, and the state supreme court agreed:
The overriding purpose of the [law’s] promise to eradicate obstacles in the workplace for persons with disabilities is to make it possible for people to work. Given that employers have an affirmative obligation to make reasonable accommodation, why should people who have requested but not received a reasonable accommodation from an employer have to wait for an adverse employment action to follow the employer’s denial or inaction — or refusal to even engage in an interactive dialogue about the request — in order to bring a complaint to compel the employer to fulfill its affirmative obligation under the regulatory scheme? To pose the question is to answer it…
The persevering employee trying to make do without a reasonable accommodation is not remediless, and a callous employer may not escape…liability for failing to perform its required duty to provide accommodation simply by declining to fire, demote, or take another form of adverse action against the employee.
Richter v. Oakland Bd. of Educ., 2021 N.J. LEXIS 548 (June 8, 2021)
What this means to you:
Respectful workplaces take requests for accommodation of disability, religion, or pregnancy seriously, not only because employers have legal obligations, but also because they believe and live the fundamental values of the organization. Accommodating disability can be as simple as not changing an employee’s schedule.
