How the New Jersey Law Against Discrimination  Protects New Jersey Employees Against Disability Discrimination:

While you may first think of the Americans with Disabilities Act (ADA) when looking for a law that protects your rights as an employee with a disability,  it is actually the New Jersey Law Against Discrimination (the NJLAD) that provides the strongest protection of your rights.

To begin with, even though Congress amended the ADA back in 2008 to broaden that law’s definition of the term “disability,” we believe that the NJLAD will continue to be found to protect a broader range of conditions than the ADA.

Under the NJLAD, the term “disability” is defined as follows:

"Disability" means physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or a visual impairment, deafness or hearing impairment, muteness or speech impairment, or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or any mental, psychological, or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological, or neurological conditions which prevent the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Disability shall also mean AIDS or HIV infection.

In applying this definition of disability under the New Jersey Law Against Discrimination, our New Jersey courts have generally been more willing than the federal courts under the ADA to find a condition a “disability.”

Second, unlike under the ADA, an employee bringing a case under the NJLAD does not need to first go to the EEOC to file a lawsuit.  Rather, under the NJLAD, an employee has the right to go to court directly, and there is no requirement to first file with the EEOC (or with the New Jersey Division on Civil Rights).

Third, while the ADA only applies to companies with 15 or more employees, there is no such requirement under the NJLAD.

And, fourth and finally, while under the ADA there are “caps” on the amount of damages an employee can recover in a lawsuit, under the NJLAD, there are no such “caps,” and there are therefore no limits on the amount of damages a jury can award an employee who prevails in a disability discrimination case.

The Right to Reasonable Accommodation of a Disability:

Under both the New Jersey Law Against Discrimination and Under the Americans with Disabilities Act, an employer is required to provide an employee with a disability a “reasonable accommodation” if that accommodation will allow the employee to perform his or her job.

“Reasonable accommodations” can include a wide variety of changes in working conditions, including the following:

• allowing a flexible work schedule, including part-time work, later starting times, or additional breaks in the workday;
• Allowing service animals;
• Modifying a restroom or the layout of a workspace;
• Providing reserved parking spots;
• Providing additional equipment or adjusting equipment to allow the employee to perform the essential functions of the job;
• Removing non-essential functions from a job;
• Providing screen reading or magnifying software;
• Providing an aide or other assistance;
• Reassigning an employee to a vacant position; or
• Allowing for remote work.

It is not necessary that requests for reasonable accommodations be in writing or even use the phrase "reasonable accommodation." While there are no magic words to seek an accommodation, you, however, must make clear that assistance is desired for your disability. Once such a request is made, your employer has a duty to assist you in the search for appropriate reasonable accommodation.

To determine what appropriate accommodation is necessary, your employer must initiate an informal interactive process with you. This process must identify the potential reasonable accommodations that could be adopted to overcome your precise limitations resulting from your disability. Once you as a disabled employee have requested assistance, it is your employer that must make a reasonable effort to determine the appropriate accommodation.

Finally, to show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: (1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith.