Tynan v. Vicinage 13 of the Superior Court of New Jersey5/31/2002
sonably accommodate an employee's handicap. E.g., Viscik v. Fowler Equipment Co., ___ N.J. ___, ___ (2002); Bosshard v. Hackensack University Medical Center, 345 N.J. Super. 78, 91 (App. Div. 2001); Muller v. Exxon Research and Engineering Co., 345 N.J. Super. 595, 604 (App. Div. 2001); Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 423 (App. Div. 2001); Ensslin v. Township of North Bergen, 275 N.J. Super. 352, 364 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995); Seiden v. Marina Assoc., 315 N.J. Super. 451, 465-66 (Law Div. 1998). The failure to accommodate is one of two distinct categories of disability discrimination claims; the other claim being disparate treatment discrimination, which is not present in this case. See Viscik, supra, at .
Department of Law and Public Safety regulations mirror the ADA and also require employers to make "reasonable accommodation to the limitations" of a disabled employee, "unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business." N.J.A.C. 13:13-2.5(b). The regulations also require employers to "consider the possibility of reasonable accommodation before firing . . . a person with a disability on the grounds that his or her disability precludes job performance." N.J.A.C. 13:13-2.5(b)(2). An employer's duty to accommodate extends only so far as necessary to allow "a disabled employee to perform the essential functions of his job. It does not require acquiescence to the employee's every demand." Vande Zande v. State of Wis. Dep't of Admin., 851 F. Supp. 353, 362 (W.D. Wis. 1994), aff'd, 44 F.3d 538 (7th Cir. 1995); Jones v. Aluminum Shapes, supra, 339 N.J. Super. at 428. See 42 U.S.C. ยง 12111(9)(B)(establishing examples of reasonable accommodations including "job restructuring, part- time or modified work schedules, reassignment to a vacant position"). If an employer reasonably determines that an employee because of handicap cannot presently perform the job even with an accommodation, then the employer need not attempt reasonable accommodation. E.g., Svarnas v. AT & T Communications, 326 N.J. Super. 59, 74-75 (App. Div. 1999).
In contrast to the ADA, N.J.S.A. 10:5-5(q), the LAD definition of "handicapped" does not incorporate the requirement that the alleged handicapping condition result in substantial limitation of a major life activity. See Olson v. General Elec. Astrospace, 966 F. Supp. 312, 314-15 (D.N.J. 1997); Illingworth v. Nestle U.S.A., Inc., 926 F. Supp. 482, 488 (D.N.J. 1996); Gimello v. Agency Rent-A-Car Sys., 250 N.J. Super. 338, 362 (App. Div. 1991). "While there is some question whether some stress disorders constitute disabilities under the ADA, see Gaul v. Lucent Techs. Inc., 134 F.3d 576, 580 n.3 (3d Cir. 1998) . . . this is less likely to be an issue under the , which defines 'handicap' more broadly than the ADA's comparable definition of 'disability.'" Leshner v. McCollisters Transp. Syst. Inc., 113 F. Supp. 2d 689, 692 fn.2 (D.N.J. 2000).
Indeed the LAD defines "handicapped" person in relevant part as one suffering from a "physical disability, infirmity . . . which is caused by . . . illness, or from any mental, psychological, or developmental disability . . . which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques." N.J.S.A. 10:5- 5(q). Because the purpose of the LAD is "to secure to handicapped individuals full and equal access to society, bounded only by the actual physical limits that they cannot surmount," the Act besides being quite broad must also be liberally construed. Andersen v. Exxon Co., 89 N.J. 483, 495 (1982).
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