This month, the New Jersey Supreme Court considered whether an employer's failure to provide a reasonable accommodation alone is sufficient to maintain a cause of action under the Law Against Discrimination, N.J.S.A. § 10:5-1 et seq. (the "LAD"). In Victor v. State, 2010 N.J. LEXIS 834 (September 13, 2010), plaintiff Roy Victor was a New Jersey State Trooper who took leaves of absence because of a back injury and stress disorder. After his doctor cleared him to return to work, he allegedly re-injured his back and requested a desk assignment. His request was denied and he returned to road patrol.

Victor sued the State Police for failure to accommodate under the LAD. After a jury trial, the trial court entered judgment in favor of Victor on his failure to accommodate claim. The Appellate Division reversed, concluding that proof of an adverse employment action is a required element of a failure to accommodate claim. The New Jersey Supreme Court affirmed, but declined to decide whether an adverse employment action is a required element of a failure to accommodate claim. Instead, the Court observed that no evidence existed that: (1) Victor was disabled when he requested a reassignment to a desk job; or (2) Victor requested a reasonable accommodation rather than simply demanding a desk job.

Bottom Line

This novel legal issue remains unresolved. As a practical matter, however, employers wishing to minimize the risk of liability under the LAD should engage in the interactive process and, of course, attempt in good faith to identify a reasonable accommodation that will permit a disabled employee to perform the essential functions of his or her job.