The New Jersey Law Against Discrimination is broad enough to prohibit discrimination based on a perceived disability even if you are not in fact disabled. Employment discrimination based your employer’s perception that you are disabled may lead to a wrongful termination. Under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., disability is one of the classes protected from discrimination, and the courts have interpreted that discrimination based on “a perception of disability” is also prohibited under the statute.
Current cases of perceived disability discrimination cite back to a 1982 NJ Supreme Court in a seminal case which is still the law and often relied upon in cases involving perceived disability and employment discrimination. In that case, Andersen v. Exxon Co., U.S.A., 89 N.J. 483 (1982), the Court dealt with issue of a perception of disability, where the employer, prematurely and without evidence, concluded that a particular condition may render an individual unable to perform the job. See New Jersey Disability Discrimination Lawyer.
If your employer has begun discriminating against you because he perceives you to be disabled and unable to do your job, either because you have a history of a having a disability, are returning from a medical leave, or for some other reason, see Employee Performance Evaluations, you should contact this office immediately for a free consultation. I have represented public and private employees who were discriminated against and was successful in recovering financial compensation for their emotional pain and suffering and moneys for past lost wages and projected future lost wages. Call today for a free consultation.
In Andersen v. Exxon Co., U.S.A., the Court affirmed the lower court's decision holding that employer discriminated against an employment applicant, holding that the employer did not have a reasonable basis for denying him employment, although he had a record of having a disability.
In addressing the provisions of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., relating to physically handicapped person, the issues the Anderson court had to decide were threefold: (1) a definition of physical handicap within the meaning of the act, (2) the standards for determining whether an employer reasonably arrived at its opinion that an employee was unable adequately to perform the duties of the job, and (3) the proper allocation of the burden of proof in handicap discrimination cases.
In this matter, the applicant applied to Exxon Company, U.S.A. for the job of nighttime nonregular heating oil driver, a seasonal job lasting approximately six months. The job required filling and driving a large oil truck and delivering heating oil to Exxon's customers. If hired as a driver, he would have had to load the truck at the employer’s facilities by climbing onto the top of the truck, opening the fill cap and pulling down and inserting the loading arm into the filler on the truck. Although the loading arm weighed 50 to 60 pounds, it was spring loaded and was not difficult to lower. Once the truck was loaded, the driver was to service various delivery sites at which he would throw the front end of the hose over his shoulder and drag the hose from the truck to the fill location. The distance from truck to fill location averaged 40 to 50 feet and each foot of hose, when filled with oil, weighed about 1.3 pounds. The hose would be wound up by means of a motorized return after delivery.
When he applied for the job position, the applicant had a meeting with the personnel manager, who advised him that he was qualified and probably would be hired, but that he would first have to go to a doctor for a pre-placement physical examination. This doctor was not an employee of the employer but rather a private physician whom the employer used occasionally.
In his medical history form, the applicant disclosed to the doctor that in the past, he had an operation for removal of a spinal disc and fusion in 1960. During the examination, the doctor asked him simply to raise his hands and bend over and touch his toes. There was no indication that he would not be able to lift the hose. After the examination, the doctor wrote in his medical report that the applicant was not recommended for employment. The applicant stated that during the medical examination, the doctor told him that he could not be hired because he had a previous back operation, and that people with back problems would not be hired by this employer.
In deciding his case, the Supreme Court found against the appellant employer. The Court affirmed the lower court's decision holding that appellant employer discriminated against a physically handicapped employment applicant, assuming, without any basis in fact, that he was unable to do the job. It held that although the applicant was handicapped within the meaning of the law, the employer did not have a reasonable basis for denying him employment, and the lower court correctly applied the burden of proof.
The Court noted in its footnote 2, that although it did not directly address the question of the perceived disability doctrine, that, “The implications of the doctrine are present in the context of this case, where the employer has determined that complainant's condition was serious enough to deny him employment.” The Court further quoted from a Washington case, “We agree that "[p]rejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be non-existent." Barnes v. Washington Natural Gas Co., 22 sh.App. (perceived disability based on single kidney).”
If your employer is wrongfully discriminating against you because of a perceived disability, he may place you on a Performance Improvement Plan with a threatened termination. See NJ Employment Attorney, I Was Put on a PIP: the Dangers of a PIP.
Some employees with a disability ask for a reasonable accommodation which would allow them to continue in their employment position, but the employer wrongfully denies them. NJ Employment Disability Attorney, Disabled Employees Not Accommodated and Illegally Terminated.
WHAT YOU CAN DO
I have represented public and private employees who were discriminated against because of their disability or perceived disability and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages. If you think your employer is illegally discriminating against you, you should contact this office immediately for a free consultation. I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
If You Quit Your Job, You May Lose Right to Prevail in a Lawsuit
In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of handing in a resignation letter, or think you will be fired (or have already been terminated), you should contact this office immediately for a free consultation to discuss your options.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.