Disability Discrimination: Failure to Reasonably Accommodate

If you have a disability which, with reasonable accommodation, would not prevent you from doing your job, your employer has a duty to engage in an interactive process to determine if a reasonable accommodation is available. If your employer fails to provide a reasonable accommodation, you may have a claim under the Americans with Disabilities Act (ADA) or the New Jersey Law Against Discrimination (NJLAD).

To prevail on this claim, you must prove four things:

First: You have a "disability" within the meaning of the ADA.

Second: You are a "qualified individual" able to perform the essential functions of your job.

Third: Your employer was informed of your need for an accommodation due to a disability. Note that there is no requirement that a request be made for a particular or specific accommodation; it is enough to satisfy this element that the employer is informed of your basic need for an accommodation.

Fourth: Your employer failed to provide the accommodations requested by you or any other reasonable accommodation.

Under the ADA, a reasonable accommodation may include, but is not limited to, the following:

1. Job restructuring;

2. Part-time or modified work schedule;

3. Reassignment to a vacant position for which you are qualified;

4. Provision of qualified readers or interpreters; and

5. Other similar accommodations.

However, a "reasonable accommodation" does not require the employer to do any of the following:

1. Change or eliminate any essential function of employment;

2. Shift any essential function of employment to other employees;

3. Create a new position for you;

4. Promote you; or

5. Reduce productivity standards.

The intent of the ADA is that there be an interactive process between the employer and the employee in order to determine whether there is a reasonable accommodation that would allow the employee to perform the essential functions of a job. Both the employer and the employee must cooperate in this interactive process in good faith, once the employer has been informed of the employee's request for a reasonable accommodation

Under the ADA, the term "disability" means a "physical or mental impairment" that "substantially limits" a "major life activity."

"Physical/Mental Impairment"

The term "physical impairment" means any condition that prevents the body from

functioning normally. The term "mental impairment" means any condition that prevents the mind from functioning normally.

"Major Life Activities"

Under the ADA, the term "disability" includes a physical or mental impairment that substantially limits a major life activity. Major life activities are activities that are of central importance to everyday life. Major life activities include the operation of major bodily functions.

"Substantially Limiting"

Only impairments with a permanent or long-term impact are disabilities under the ADA. Temporary injuries and short-term impairments are not disabilities. The name of the impairment or condition is not determinative. What matters is the specific effect of an impairment or condition on your life. The definition of "disability" is to be construed in favor of broad coverage of individuals.

Once you establish that you have a disability as that is defined under the ADA, you must then prove that you are a "qualified individual." This means that you must show that you have the skill, experience, education, and other requirements for the job and could do the job's "essential functions", either with or without reasonable accommodation. This does not mean you must prove you can perform all the functions of your job, only the "essential functions". If you cannot establish you are qualified to perform the essential functions of your job even with a reasonable accommodation then you are not a qualified individual under the ADA. The ADA does not require an employer to hire or retain an individual who cannot perform the job with or without an accommodation.

Taking Action:

Determining whether you have a claim of failure to provide reasonable accommodation requires the assistance of a professional. If you believe you are a victim, Zuckerman & Fisher, LLC is willing and able to help you. We are located in Princeton, Mercer County, New Jersey, and we have experience statewide resolving all types of discrimination, harassment and retaliation claims, whether through settlement or trial. So, contact us to set up an initial consultation. You can call us at 609.514.0514, or email us at ez@zuckfish.com (for Elizabeth Zuckerman, Esq.), or gwf@zuckfish.com (for George Fisher, Esq.). We will be happy to discuss your matter over the phone before you decide whether to schedule an initial consultation.