In other words, the appeals court ruled that in order to win his case, Victor had to show not only that the state police had violated his rights by refusing to provide a "reasonable accommodation," but also that he had suffered some other separate and independent injury of the sort that usually is required to justify a discrimination claim — a termination, demotion, reduction in pay, denial of a promotion, etc. — a so-called "adverse employment action." "Here, plaintiff was [neither] passed over for promotion, fired, transferred, reassigned, demoted [n]or even docked wages when he was told to resume patrol duty despite his back discomfort," the court ruled.
AARP's "friend of the court" brief in Victor v. New Jersey noted that the state appeals court's ruling created clear conflicts with settled New Jersey and federal court precedents. In the first place, where N.J. courts have yet failed to rule on an issue, N.J. law calls for state courts to look to federal decisions under comparable federal civil rights statutes — here the Americans with Disabilities Act. And there are two such decisions. Both state plainly that a "failure to accommodate" should be treated by itself as an "adverse employment action." Moreover, AARP noted, N.J. disability discrimination law calls for a generous construction of the LAD consistent with the goal of providing broad protections for workers facing employment discrimination. Yet the appeals court in Victor adopted a very restrictive reading of the LAD.
AARP also contended that the appeals court's decision established a "serious, arbitrary, and unwarranted barrier to consideration of the merits of certain disability discrimination claims under New Jersey anti-discrimination law." Because it would create an enormous loophole in the state law, the brief argued, it would send a green light to employers to discount their responsibility to afford employees with disabilities "reasonable accommodations." AARP reasoned that this is a result the New Jersey Legislature could not have intended.
The state's top court agreed. "[I]t is difficult for us to envision factual circumstances in which the failure to accommodate will not yield an adverse consequence. But there may be individuals with disabilities who request reasonable accommodations, whose requests are not addressed or are denied, and who continue nonetheless to toil on … We cannot foresee all of the factual settings that might confront persons with disabilities and, although hard to envision, we therefore cannot entirely foreclose the possibility of circumstances that would give rise to a claim for failure to accommodate even without an identifiable adverse employment consequence," wrote the court.
In this specific case, however, while the court upheld the legal principles AARP urged, the court ruled against Mr. Victor because it found he had not met initial tests needed to show either that he was disabled or that he had been denied reasonable accommodation.
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