Attorneys Robert W. Smith and Christopher J. Eibeler

Disability Discrimination

Disability DiscriminationNew Jersey Employment Discrimination Lawyers

Have you been denied your request for a reasonable accommodation because of a physical or mental disability that is needed to perform your work? Did your employer tell you that it doesn't have to accommodate you, provide you a short leave of absence for a disability, or intermittent leave because you are ineligible under the FMLA? If so, you may have reason to file a claim for disability discrimination under New Jersey state law.

Our employment lawyers represent individuals who have been discriminated or retaliated against, subjected to a hostile work environment or wrongfully terminated for requesting a reasonable accommodation for a mental disability, physical disability or other disability. We assist clients who have been told that if they exercise their right to take leave under the Family Medical Leave Act (FMLA) or New Jersey Family Leave Act (or are ordered by medical providers to go on bed rest), they will be replaced.

Our disability discrimination lawyers assist employees in workplace issues. In some cases, an employee needs education about reasonable accommodations, classes of persons protected from discrimination and other workplace issues. Other times, an employee has not been informed of the possibility of an accommodation and has been wrongfully terminated because an unaccommodated disability leaves them unable to perform essential job functions.

The New Jersey Law Against Discrimination prohibits employers from discriminating against applicants or employees on the basis of their disability.  The burden of proof is on the employee to prove a claim of disability discrimination under New Jersey law.  In order to do so, an employee must prove each of the following elements of a disability discrimination cause of action: (1) he or she has a disability; (2) he or she was able to perform the essential functions of his or her job with or without a reasonable accommodation; (3) the employer was aware of his or her need for a reasonable accommodation; (4) there was an accommodation that would have allowed him or her to perform the essential functions of the job; (5) the employer denied the employee the accommodation.  

One dispute that is common in a disability discrimination lawsuit is whether the employee was able to perform the essential functions of his or her job.  While the plaintiff in a disability discrimination case has the burden of showing that he or she could perform the essential functions of his or her job with or without a reasonable accommodation, the employer has the burden to show a particular job duty is truly essential.  A judge or jury will consider the following principles in coming to the determination of whether a job function is essential: (1) the job function may be essential because the reason the position exists is to perform the function; (2) the job function may be essential because of the limited number of employees among whom the work can be distributed; and (3) the job function may be essential because it is highly specialized and the person doing the job is chosen because his or her expertise.

Written job descriptions, the percentage of time that the employee performs the particular job function, the consequences of the employer not requiring the employee to perform the particular job function, the specific terms of any collective bargaining agreement or other employment agreement that applies to the particular job position and whether other employees in the same or similar position are also required to perform the particular job function are all important considerations for the jury to consider when deciding whether a job function is essential.

While an employee must prove that his or her employer was aware of the need for an accommodation, they are not required to specifically use the legal term "reasonable accommodation" or other magic legal words.  Instead, the employee must show that he or she made clear to the employer that they need assistance in performing the job duties as a result of the disability.  Once the employee makes clear that he or she needs help with their employment because of the disabilty, both the employee and employer are required to engage in an interactive process to determine whether and what accommodation can be made.

The interactive process requires both the employee and the employee to engage with one another to search and determine what reasonable accommodations are necessary and that are possible. The interactive process requires the employer to take some initiative to identify the potential reasonable accommodation that could be provided to the employee to overcome the precise limitations of the employee resulting from his or her disability. The process must be interactive, which means an open communication between the employee and employer.  This is because both the employer and the employee hold information that the other does not have or cannot easily obtain on their own.

The New Jersey Law Against Discrimination requires employers to grant an employee's request for an accommodation unless the employer can show that the accommodation being required would impose an undue hardship on its business operations.  The law also makes it an unlawful employment practice to deny an employee the opportunity to maintain employment solely because the employee has a disability unless it can show that the person's disability would prevent the employee from performing the job.  

An employer is required to make a good faith exploration in considering accommodations before terminating a disabled employee.  The purpose behind requiring an interactive process in considering accommodations is to spur the kind of back-and-forth between the employee and the employer necessary for them to mutually identify a reasonable accommodation.  If one of the parties does not engage with the other in good faith in this process, that party runs a serious risk of overlooking the accommodation that could have saved the employee from termination.  If the employer overlooks an accommodation because it failed to engage in an interactive process in good faith, it may be found liable for unlawful termination and liable for damages.

In determining whether there was a failure to engage in an interactive process, courts often look for signs that one party obstructs or delays the process and/or flow of information.  If a party fails to communicate or respond to the other party, a court could view the party as not acting in good faith.  When there is a breakdown of communication between the employer and employee, a court will analyze the cause of the breakdown in determining whether the employee was responsible and therefore liable.  An employer who engages in good faith with an employee can prove it in a number of different ways, such as showing that it met with the employee, requested information concerning the disability and limitations it causes the employee in performing the job, asked the employee what he or she specifically wants from the employer and/or otherwise show signs of having considered the requested accommodation or other available alternatives prior to taking adverse employment action.  

New Jersey law rightfully recognizes that disabled persons have the right to work.  Disability discrimination cases can be complicated and are often fact sensitive particular to the nature of the employee's disability and the business operations of the employer.  If you or a family member are disabled and are having a workplace issue, please feel free to contact one of our disability discrimination lawyers to discuss the specific facts and circumstances concerning your workplace issue.  We are conveniently located at the Bell Works building in Holmdel, Monmouth County, New Jersey. 

Contact us to schedule a consultation with an experienced employment law attorney today.

DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Client Reviews
★★★★★
We had a wrongful termination issue combined with a denial of unemployment insurance. Chris Eibeler was our primary attorney. His partner Bob Smith also consulted and gave us good advice. They were both so kind, caring, and professional. They guided us though a very tough time and a positive outcome versus a prior employer. They were also able to reverse our denial of unemployment insurance. I cannot recommend Smith and Eibeler highly enough. The entire staff is very professional, personable, and caring. Tom Wilson
★★★★★
I went to Smith Eibeler LLC for a last minute unemployment matter. Chris, Diane and his staff were very professional and easy to talk to. They provided knowledgeable insight and also kept me in the loop with the what was happening. I would not hesitate to go to him again. John Jung
★★★★★
Chris Eibeler (and the whole team) is very knowledgeable in all aspects of employment/unemployment here in NJ. They break down the most difficult aspects of the law, which allows you to conceptualize and better understand the complexities of the NJ Labor & Employment system. Smith Eibeler should be your first call regarding any Employment, workforce, or Labor questions here in New Jersey. I highly recommend them. Brian Allen
★★★★★
I approached Chris Eibeler regarding an unemployment case in early 2016. Him and his staff are some of the most professional people I have ever dealt with. The process took a while, but his approach to hard questioning helped me win my case. He knows how to get the job done and I am glad I went to him. I would recommend him to anyone in the future who asks for a lawyer. Thank you Chris! Tim F.
★★★★★
I highly recommend the office of Smith Eibeler for employment related issues, particularly anything related to restrictive covenants or post-employment contracts. I found Smith Eibeler via the web and cannot believe how fortunate I am to have found them. My case was handled by Bob Smith who represented me in a potential lawsuit by my former employer for violation of a post-employment contract (not a restrictive covenant per se). Bob was professional, friendly, understanding, and above all extremely helpful. Bob helped me avoid a lawsuit and was extremely knowledgeable in this field. I was thoroughly impressed with his prowess. Hopefully I will never have a legal issue related to employment again, but if I do, I will not hesitate to retain Smith Eibeler again! Gavin Tully