On September 13, 2010, the Supreme Court of New Jersey issued a sixty-page opinion in a disability discrimination case. For over 80% of its discussion in the case of Roy M. Victor v. State Of New Jersey, A-2-09, the Court debated whether to recognize a failure to accommodate disability discrimination claim without requiring that plaintiff prove that an adverse employment consequence had accompanied the alleged failure to accommodate. In the end, the Court said that this was not the case in which to make that determination, though its repeated allusions to what it termed the “strong protective embrace” of the New Jersey Law Against Discrimination (LAD) certainly seemed to put employers on notice that New Jersey seemed poised, as the Seventh Circuit has under the Americans With Disabilities Act, to recognize a LAD claim for failure to accommodate a disability that did not require that plaintiff prove an adverse employment consequence.
But Victor was a victory for this plaintiff’s employer, and includes in its last few pages language that can help other employers faced with disability and accommodation issues.
First, the Court made clear that not every injury renders one “disabled” or “handicapped,” and that this is especially so for “undocumented” injuries. Slip op. at 52.
Second, the Court made clear that a duty to reasonably accommodate is “not  a duty on the part of the employer to acquiesce to the disabled employees requests” for any particular accommodation. Slip op. at 53 (emphasis in original). Indeed the Court emphasized that choosing among various reasonable alternatives remains in the employer’s “ultimate discretion” and “does not dictate that any particular concession must be made by the employer.” Slip op. at 54-55.
Finally, the Court concluded that making demands of those “not authorized to change his duty status,” “demand[ing] that a new position be created” even temporarily, or holding out for “an accommodation that he preferred be given to him when others are available” left this plaintiff unable to sustain his burden to demonstrate a prima facie case. So, while the Court came close to expanding the ability of plaintiffs to make failure to accommodate claims, the Court actually strengthened the requirements for establishing a prima facie case.