To be considered to have a protected “disability” under New Jersey’s Law Against Discrimination (LAD), one must show they have:
1. Any physical disability, infirmity, malformation or disfigurement
caused by bodily injury, birth defect or illness
2. Any mental, psychological or developmental disability that
results from conditions that prevent the normal exercise of
any bodily or mental function or which can be shown to exist
through accepted clinical or laboratory diagnostic tests.
www.nj.gov/oag/dcr/downloads/fact-Disability-Discrimination.pdf
In an unpublished case decided this past summer entitled Algozzini v. DGMB Casino, LLC, d/b/a Resorts Casino Hotel, 2024 N.J. Super. Unpub. LEXIS 1694 (App. Div. July 17, 2024), our New Jersey Appellate Division considered how broadly a claimed “disability” should be interpreted within the meaning and scope of the LAD. In Algozzini, the Plaintiff worked for an Atlantic City casino as its Director of Slot Operations for almost five years before he suffered injuries in a fire hospitalizing him for one month with burns covering seventy percent of his body. Afterward the plaintiff went through five months of rehabilitation before returning to work in January of 2020. At that time, plaintiff’s doctor stated his range of motion and strength had improved, but noted he still had a decreased ability to participate in work.
Prior to returning to work, plaintiff’s supervisor contacted him to see if he could “handle” stairs and asked what other “contraptions” he might use. The plaintiff told his supervisor he currently used a cane and would know more as he “progressed” in physical therapy. While he was still on medical leave, the casino eliminated the Director position and created two new positions, one of which was offered to plaintiff upon his return. The new position had less responsibilities and paid significantly less than the position plaintiff previously held. Before accepting what, he considered to be a demotion, plaintiff emailed management informing them he believed this action was discriminatory and violated the law. Management claimed the role was eliminated due to business needs. He returned to work using a cane but did not ask for accommodations. Shortly after, the COVID-19 pandemic shut the casino down. Six months later, management informed plaintiff that his position had been eliminated and his employment terminated because the casino was only bringing back “critical roles.” His duties now had to be performed by his supervisor and other employees. Shortly after, plaintiff filed a disability discrimination lawsuit alleging violation of the LAD.
The LAD prohibits “unlawful discrimination against any person because such person is or has been at any time disabled.” N.J.S.A. 10:5-4.1. To establish a prima facie case for discrimination under the LAD, an employee must demonstrate: (1) they were a member of a protected class; (2) their job performance met the employer’s legitimate expectations; (3) they suffered an adverse employment action; and (4) the employer sought to have someone else perform the same work. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005). Under the LAD “disability” is defined as a “physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect or illness . . . which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. N.J.S.A. 10:5-5(q).
The Algozzini trial court dismissed the case finding that the plaintiff did not establish he had a disability. In its reasoning, the trial court stated the plaintiff did not provide any expert witnesses or reports proving his disability or that his condition prevented “typical” physical or mental functions. Additionally, the trial court focused on depositions in which plaintiff testified to not needing accommodations at subsequent jobs and inferred from this that the Plaintiff at the time his employment was terminated. was no longer disabled.
On appeal, the plaintiff argued that the trial court erred in finding that he failed to prove his disability. Specifically, the plaintiff claimed the trial court did not consider certain medical records, rejected others as hearsay, and erroneously concluded that plaintiff’s physical disability was “non-complex and readily apparent.” In reversing the trial court’s decision. the Appellate Division agreed that the trial judge too narrowly interpreted the scope of what a disability is within the meaning of the LAD. In doing so the appellate court found the trial court’s view of plaintiff’s claimed disability was too narrow and conflicted with the statute’s broad definition of “disability” and its remedial purposes. The appellate court also noted how the LAD prohibits discrimination against someone who is, has been, or is perceived to be disabled at any time (N.J.S.A. 10:5-4.1.), including those whose disabilities disappeared by the time of the alleged discrimination. Significantly, the Appellate Division opined that plaintiff’s testimony alone was sufficient to lead a reasonable fact finder to conclude he was disabled and remanded the case back to the trial level for further proceedings.
The Algozzini case underscores the very broad and liberal interpretation our courts are to give claims of disabilities under New Jersey’s LAD Under LAD individual claimants are not required to prove their disabilities are severe or permanent to qualify for protection under the statute. This means protected disabilities can be temporary and are not required to be present at the time an adverse employment action is taken. Furthermore, individuals who are perceived to have a disability benefit from the same protections under the LAD as those who have disabilities. Grande v. Saint Clare’s health Sys., 230 N.J. 1, 17-18 (2017).
If you believe you are or have been a victim of unlawful workplace discrimination because of a disability, actual or perceived, you are urged to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to protecting the rights of New Jersey employees.