New Jersey laws mandates that an employer may not discriminate against an employee in the terms and conditions of employment because they perceive the employee to be disabled. The employee does not, in fact, have to actually be disabled. If the employer discriminates against an employee because he perceives him to to be disabled, it is a violation of the employee’s civil rights under the NJ Law Against Discrimination (NJLAD). This may happen when the employee had a prior disability from which he is now fully recovered, such as from a sports injury, cancer, certain heart-related events. When an employee has a history of a disability, the employer may perceive them to be disabled long after they are no longer disabled. This misconception can lead to a failure to promote, being denied opportunities for advancement that are offered to others, not being fairly evaluated on Employee Performance Evaluations. If the employee returns to work and requires a reasonable accommodation to keep working, and the employer fails to provide it, or otherwise denies opportunities for advancement etc., it is a violation of the employee’s civil rights. See NJ Employment Attorney, Employee Managers Requiring Disability Accommodation Pressured into Resigning.
Don’t sit on your rights. If you are experiencing discrimination in the workplace as a result of a past or present disability, you should contact this office immediately for a free consultation. I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were discriminated against because of a disability and in recovering financial renumeration for discrimination, lost wages, humiliation, pain and suffering. New Jersey Disability Discrimination Lawyer. If you are experiencing such discrimination, you should contact this office immediately at 201 599-9600 for a free consultation. I accept cases from all over NJ and have locations in Southern, Central and Northern NJ to meet with clients.
Claims Based upon a Perceived Disability Still Require NJLAD “Perceived Characteristic” by Employer.
The Law Against Discrimination (LAD), N.J.S.A. §§ 10:5-1 to 10:5-49, prohibits employers from discriminating against employees based upon actual disability or perceived disability. Claims based upon a perceived disability still require a perceived characteristic that, if genuine, would qualify a person for the protections of the LAD. Those perceived as suffering from a particular handicap are as much within the protected class as those who are actually handicapped. See NJ Employment Attorney, Employer Thinks Employee Cannot Do Job, a Perceived Disability.
Definitions of Disability Relative to be Protected under § 10:5-5 (q)
Under this framework, the first inquiry is whether the employee would be perceived by the employer to have a disability. For this we look to the accepted statutory definitions of under the NJLAD.
§ 10:5-5. Definitions relative to discrimination
q. “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 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 prevents 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.
Note, However There Two Fact Patterns Involving a Condition Not Initially Covered as a Disability under the NJLAD yet Allow Plaintiff to Be in a Protected Class
By way of example only:
1) When the condition is not initially covered as a disability under§ 10:5-5 q, but the condition has caused an employee to have other medical conditions; by way of example only, obesity alone is not listed as a disability under § 10:5-5(q) so obesity alone not a protected disability if based solely on one's weight. However, obesity frequently does cause other medical conditions such as cardiovascular disease, Type II diabetes, or a lack of physical coordination, and then the employee will then be considered disabled, as a result of the other disabilities.
2) Also using an example of obesity alone is not a protected disability under the NJ Law Against Discrimination, N.J.S.A. §§ 10:5-1 to 10:5-49, the condition of obesity will be considered a disability when it has an underlying medical cause, such as is caused by bodily injury, birth defect, or illness including epilepsy and other seizure disorders.
Perceived Disability Claim Must Be Grounded upon Direct or Circumstantial Evidence That Defendants Perceived a Plaintiff to Be Disabled.
In Dickson v. Community Bus Lines, Inc., 458 N.J. Super. 522 (2019), at issue was whether the Plaintiff had suffered a hostile work environment because his employers perceived him to be disabled. In this case, the Plaintiff began working as a bus driver for defendant Community Bus Lines, Inc. in 2005. In order to maintain his employment as a bus driver, he had to hold a valid Commercial Driver's License (CDL). The United States Department of Transportation (DOT) requires all CDL holders to pass a medical examination every two years and obtain a medical certification card verifying that they are fit to drive.
He weighed between 500 and 600 pounds during the ten years he worked for Community as an active driver. He passed his required medical examinations during this period, and his employer recognized his accomplishments on the job by giving him several awards. He testified that the other drivers and his supervisors regularly made rude comments to him about his weight. Among other things, they told him that he was "fat," and "must weigh a thousand pounds," would likely eat all the food out of the snack machines, was "as big as a bus" or "a 747," and might break chairs if he sat on them.
At the same time, however, plaintiff conceded that he made jokes with, and teased, other employees at the depot. He referred to himself as "fat boy" in the presence of his coworkers and also admitted that he called himself "fat" on his Facebook page, where he had "friended" some of the other drivers so that they could view and comment on his posts.
On appeal, plaintiff no longer argued that he suffered from an actual disability under the NJLAD. Instead, he asserted that his supervisors and coworkers discriminated against him based upon a “perceived disability theory, i.e., their perception that he had a disability because he was overweight. The Appellate Court disagreed and upheld the dismissal.
The court noted that "Severity and workplace hostility are measured by surrounding circumstances." Taylor v. Metzger, 152 N.J. 490, (1998) and in concluding that he did not meet this standard, that while the plaintiff endured comments regarding his weight and size from other co-workers, he, himself, even made jokes and comments regarding his weight and size.
The coworkers' comments were not physically threatening and were in line with the self-deprecating comments plaintiff made about himself to the other Community employees when he voluntarily spent time with them in the breakroom after work. Contrary to his contention, these remarks were in no way similar to the abhorrent racial epithets that had been made in a different discrimination case based on race harassment.
Also, he had never claimed that the rude remarks unreasonably interfered with his work driving the bus. To the contrary, until he was unable to secure a medical certification card, plaintiff was a valued employee who received several commendations. The employer never fired him and kept his job open in the hope that he would be able to pass his licensing examination.
The court held that a perceived disability claim based on obesity must be grounded upon direct or circumstantial evidence that defendants perceived the plaintiff to be disabled due to a medical condition that caused him or her to be overweight. The order granting summary judgment to defendants and dismissing plaintiff's complaint was upheld because he was unable to demonstrate that the employer perceived him to be disabled and he failed to demonstrate that the comments his coworkers made to him about his weight created a hostile work environment.
The court stated there was no evidence that employer perceived Plaintiff to be disabled.
Employees who are disabled or perceived to be disabled, suffer much discrimination. See NJ Employment Attorney, Employee with Disability Terminated by Employer, Shocking Statistics. Older employees in particular may be perceived to be disabled, on denied accommodations on par with other disabled employees, to allow them to keep working. If so, they may have an additional age discrimination claim. New Jersey Age Discrimination Lawyer.
If you resign, you may lose right to prevail in a lawsuit.
In many instances of discrimination and retaliation, if you resign, 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 resigning, or think you will be fired, or have been fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you. I accept cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients. Call now for a free consultation.
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.