Disability Discrimination Can Be Found Where New Jersey Employer Fails to Engage in Good Faith with Disabled Employee to Find Reasonable Accommodation

In a recent New Jersey employment law decision regarding disability discrimination and employer’s duty to provide reasonable accommodations for disabled employees, a New Jersey appeals court explained in the case of Gould v. New Jersey Department of Transportation the requirement for employers to engage in a good faith “interactive process” with their disabled employees to determine what reasonable accommodations can be provided to allow the employee to continue working.

 

Background

Leroy Gould worked for the New Jersey Department of Transportation from 2001 until he retired in 2021.  He was a transit planner and coordinator, coordinating bus and rail service.  In 2012, Gould was diagnosed with prostate cancer, undergoing surgery and radiation which caused incontinence.  As a result, he usually had to go to the restroom immediately upon arrival to work.  He drove to a main parking lot, then took an employee van to his office building; the drop-off point was only a two-minute walk, which worked fine.  He was allowed to wear jeans because the fabric soaked up urine quickly and prevented rashes, and he received a standup desk because of vascular issues.

In 2017, his building’s parking lot underwent construction causing the drop-off point to be moved further from the closest restroom.  He spoke with human resources about the problem, asking to either work at home during the construction or enter through the side entrance which had a closer restroom.    His urologist gave him a note supporting the accommodation request.  Human resources denied his request, offering him additional time in the mornings or a leave of absence.  It said there were security issues with the side door, they were considering a port-a-john, and the Department of Transportation does not allow telecommuting.

Gould also requested a permanent accommodation, again supported by documentation from his doctor, of a bathroom near his workstation with sufficient privacy to change his soiled clothes and facilities to rinse and dry them.  Gould explained:

In my current situation, access to a restroom that meets my needs is not a convenience, but rather the difference between getting out into the world and becoming a contributing member of society or remaining hidden at home where I can be assured of reaching a restroom in time. I think I have a right to work in spite of my disabilities. The leaders of this facility should be able to find reasonable solutions that maintain my dignity without disrespecting me or my disabilities.

The Department waited two months to respond.  It then placed a chair, coat hooks, and waste receptacles in the restroom near his workstation, but told him that he would have to go to the restroom near the cafeteria if he wanted privacy.  However, the cafeteria restroom was too far to prevent leakage and didn’t have a handicapped stall or private area to clean.

Gould retired early in 2021 because he “could not handle the leaking anymore and… not being able to clean up afterwards.”

 

Gould’s Lawsuit

Gould filed suit against the Department in the Law Division of the Superior Court of New Jersey.  The judge dismissed his suit on summary judgment.  The judge explained that he believed that the Department had acted in good faith to find a reasonable accommodation for Gould’s disability.

Gould appealed to the Appellate Division of the Superior Court of New Jersey.  The Appellate Division reversed the Law Division judge’s dismissal and remanded the case for trial.

 

The Appellate Division Explains the Interactive Requirement

The New Jersey Law Against Discrimination prohibits discrimination because of an employee’s disability.  Subsequent case law and the New Jersey Administrative Code require that an employer must make “reasonable accommodations” to allow an employee to fulfill the essential functions of his position and continue working.  The New Jersey Appellate Division has ruled that this includes the requirement that the employer and employee engage in good faith in an “interactive process” to determine what reasonable accommodations would allow the employee to do so.

The Appellate Division explained that there were genuine issues of fact about whether the Department had engaged with Gould in a good faith interactive process thus precluding dismissal on summary judgment and requiring the facts to be decided by a jury.  For instance, was it reasonable for the Department to just categorically prohibit Gold from working remotely without an individualized consideration of his particular circumstances.  And while the port-a-john would have been a reasonable accommodation, the Department never followed through on it.

The Appellate Division therefore reversed the dismissal of Gould’s case and remanded it for a jury trial on the merits.

 

The Takeaway

While employers do not need to give accommodations to disabled employees which would cause an “undue hardship” to the employer, they do need to engage in a good faith interactive process with their employees to see if a “reasonable” accommodation can be found.  Failure to engage in this interactive process constitutes disability discrimination, subjecting the employer to liability.

 

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