Mary Richter v. Oakland Board of Education (083273) ( 2021 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Mary Richter v. Oakland Board of Education (A-23-19) (083273)
Argued September 14, 2020 -- Decided June 8, 2021
LaVECCHIA, J., writing for a unanimous Court.
Plaintiff Mary Richter, a longtime type 1 diabetic and teacher, experienced a
hypoglycemic event in a classroom. She sustained serious and permanent life-altering
injuries. Richter pursued through this action a claim under the Law Against
Discrimination (LAD), alleging that her employer failed to accommodate her pre-existing
disability. The Court addresses two issues: (1) whether Richter is required to establish
an adverse employment action -- such as a demotion, termination, or other similarly
recognized adverse employment action -- to be able to proceed with an LAD failure-to-
accommodate disability claim; and (2) whether plaintiff’s claim is barred by the
“exclusive remedy provision” of the Worker’s Compensation Act (WCA) because she
recovered workers’ compensation benefits.
Richter was a science teacher employed by defendant Oakland Board of
Education. At the start of the 2012-2013 school year, Richter received her schedule for
the first marking period and learned that her lunch was scheduled for 1:05 p.m.
Believing that would negatively affect her blood sugar levels, Richter asked defendant
Gregg Desiderio, the principal of the school where she taught, to adjust her schedule so
she could eat lunch during the period beginning at 11:31 a.m. Desiderio told Richter he
would “look into it.” Further communications were exchanged about the requested
accommodation; in the end, no change was made, and Richter attended to her cafeteria
duties and ingested glucose tablets to maintain her blood sugar levels. Adjustment was
made during the second marking period; however, a similar scheduling issue arose during
the third marking period.
On March 5, 2013, near the end the period before her lunch, Richter suffered a
hypoglycemic event in front of her students. She had a seizure, lost consciousness, and
struck her head on a lab table and the floor, causing extensive bleeding. Richter was
transported to a hospital for treatment. Prior to that, she had never passed out at work.
Richter filed a workers’ compensation claim for the work-related injuries; she
recovered for her medical bills and for disability benefits. In March 2015, Richter filed
this action rooted in the LAD for failure to accommodate her diabetic condition.
1
Defendants moved for partial summary judgment on the basis that Richter’s bodily
injury claim was barred by the exclusive remedy provision of the WCA. The motion
judge held that under the WCA’s intentional wrong exception, Richter’s bodily injury
claim was not barred. Defendants moved for summary judgment again, alleging that
Richter failed to establish a prima facie failure-to-accommodate claim under the LAD
because she suffered no adverse employment action. A different motion judge granted
defendants’ motion for summary judgment.
The Appellate Division reversed the grant of summary judgment in favor of
defendants. 459 N.J. Super. 400, 412-13 (App. Div. 2019). The Court granted
defendants’ petition for certification, limited to “whether an employee alleging
discrimination for failure to accommodate a disability, pursuant to the [LAD], is required
to show an adverse employment action; and whether plaintiff’s claim is barred by the
exclusive remedy provision of the [WCA].” 240 N.J. 58 (2019).
HELD: An adverse employment action is not a required element for a failure-to-
accommodate claim under the LAD. Further, plaintiff’s LAD claim based on defendants’
alleged failure to accommodate her pre-existing diabetic condition is not barred by the
WCA, and plaintiff need not filter her claim through the required showings of the
“intentional wrong exception.”
1. Although the LAD does not explicitly address a reasonable accommodation
requirement or claim, New Jersey courts have uniformly held that the LAD nevertheless
requires an employer to reasonably accommodate an employee’s disability. That
requirement was codified at N.J.A.C. 13:13-2.5(b) in 1985. Under that regulation, unless
it would impose an undue hardship on the operation of the business, an employer must
make a reasonable accommodation to the limitations of an employee who is a person with
a disability. The identification of the elements of the failure-to-accommodate claim
developed in decisions issued by trial and Appellate Division courts. Those courts
identified adverse employment consequence as one element of the prima facie case for
disability discrimination, in part because the factual setting of each case included an
adverse job consequence. (pp. 16-18)
2. In Victor v. State, the Court confronted for the first time a dispute over the required
elements of a failure-to-accommodate claim where a claimant does not allege an adverse
employment action. 203 N.J. 383, 412-13 (2010). The Victor Court noted that a
“disabled employee who is denied a requested reasonable accommodation . . . will
generally, as a result,” suffer 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.” Id. at 421. The Victor Court
declined to “foreclose the possibility of circumstances that would give rise to a claim for
failure to accommodate even without an identifiable adverse employment consequence.”
Id. at 422. Ultimately, the holding in Victor did not resolve whether an adverse
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employment action is a requisite part of a prima facie failure-to-accommodate claim
because it rested on other grounds. Id. at 422-24. In two later cases -- Royster v. State
Police, 227 N.J. 482, 500 (2017), and Caraballo v. City of Jersey City Police Department,
237 N.J. 255, 267-68 (2019) -- the Court recited the elements of a failure-to-
accommodate claim without including adverse employment action as a requirement, but
did not expressly hold that an adverse employment action is not an element of an LAD
claim for failure to accommodate. (pp. 18-21)
3. Many federal courts have recited the elements of a failure to accommodate claim
under the Americans with Disabilities Act without mention of a required adverse
employment action, as the Court did for claims under the LAD in Royster and Caraballo.
And in at least two federal cases, a plaintiff’s failure-to-accommodate claim was
permitted to proceed when no adverse employment action occurred. (pp. 21-25)
4. The Court now formally holds that an adverse employment action is not a required
element for a failure-to-accommodate claim. The wrongful act for purposes of a failure-
to-accommodate claim is the employer’s failure to perform its duty, not a further adverse
employment action that the employee must suffer. To best implement the Legislature’s
stated intent to eradicate discrimination and make the workplace hospitable for persons
with disabilities, the Court concludes that an employer’s inaction, silence, or inadequate
response to a reasonable accommodation request is an omission that can give rise to a
cause of action. Stated otherwise, a failure-to-accommodate claim is not dependent on
causing harm to the employee through an adverse employment action. While a lack of
demonstrable consequences -- whether in the form of an adverse action, of injuries like
those sustained by Richter, or of some other type -- might affect the damages to which an
affected employee might be entitled, an employer’s failure to accommodate is itself an
actionable harm. The Court declines to adopt the approach taken by some courts -- that
the employer’s failure to reasonably accommodate is “the” adverse employment action
for purposes of considering the rights of a person with disabilities in the workplace.
Rather than impose a formalistic hurdle, the better, and simpler, course is to recognize
that an adverse employment action is not an element of a failure-to-accommodate claim.
(pp. 25-29)
5. The Court next turns to whether Richter’s failure-to-accommodate claim is barred by
the WCA’s exclusive remedy provision. The parties’ positions pit against one another
two statutory schemes -- the LAD and the WCA -- both of which are remedial in nature.
Enacted in 1911, the WCA was a historic trade-off whereby employees relinquished their
right to pursue common-law remedies in exchange for automatic entitlement to certain,
but reduced, benefits whenever they suffered injuries by accident arising out of and in the
course of employment. The WCA has an exclusivity requirement and a limited
“intentional wrong” exception whereby, “[i]f an injury or death is compensable under this
article, a person shall not be liable to anyone at common law or otherwise on account of
such injury or death for any act or omission occurring while such person was in the same
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employ as the person injured or killed, except for intentional wrong.” N.J.S.A. 34:15-8.
The LAD’s worthy purpose is no less than eradication of the cancer of discrimination in
our society, and the LAD is given liberal construction. This appeal focuses on the LAD’s
damages provision. In 1990, the Legislature amended the LAD to provide for a right to a
jury trial and punitive damages. And N.J.S.A. 10:5-13 was amended to add common law
remedies for an LAD statutory violation: “All remedies available in common law tort
actions shall be available to prevailing plaintiffs. These remedies are in addition to any
provided by this act or any other statute.” Legislative history of the 1990 amendments
makes clear that the Legislature’s intent was to reinforce that the LAD supplements the
common law. (pp. 29-38)
6. An overriding principle of statutory construction compels that every effort be made to
harmonize legislative schemes enacted by the Legislature. The Court reviews cases in
which it harmonized the LAD with other statutes when conflicts were perceived. The
WCA was in place when the LAD was enacted, and the Legislature certainly would have
been aware of the WCA when, in 1990, it added the common law remedies to the LAD
and directed that the LAD supplement those remedies. In Schmidt v. Smith, the
Appellate Division relied in part on those 1990 amendments in concluding that the WCA
was not the exclusive means for managing sexual harassment in the workplace and that
an LAD action could be pursued notwithstanding the WCA. 294 N.J. Super. 569, 585-86
(App. Div. 1996), aff’d, 155 N.J. 44 (1998). The Court now makes express Schmidt’s
import, holding that the WCA’s exclusive remedy provision does not attach to Richter’s
LAD claim. Each statute operates to fulfill different purposes, both protective of workers
in the workplace. The statutes can function cumulatively and complementarily; they are
not in tension, much less in conflict, as the Court illustrates by reviewing the facts of the
present case. The two statutory schemes, harmonized, operate to prevent double
recovery. With double recovery averted, there is no possible conflict. Thus, the full-
throated pursuit of remedies available under the LAD for actionable disability
discrimination may proceed unencumbered by the WCA exclusivity bar. (pp. 39-47)
7. The WCA provides a workers’ compensation lien for an employer under N.J.S.A.
34:15-40. The Appellate Division reviewed that provision’s operation and instructed on
how, if a jury awards damages to Richter on remand, the employer may obtain
reimbursement for workers’ compensation benefits paid. 459 N.J. Super. at 423-26. The
Court reviews those instructions and agrees with the Appellate Division’s direction on
this matter, rejecting defendants’ argument claiming a right to “100% reimbursement.”
The Court also affirms the Appellate Division’s holding that the jury may not be
presented with evidence of Richter’s medical expenses and lost wages. (pp. 47-48)
AFFIRMED AS MODIFIED. REMANDED for trial.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE LaVECCHIA’s opinion.
4
SUPREME COURT OF NEW JERSEY
A-23 September Term 2019
083273
Mary Richter,
Plaintiff-Respondent,
v.
Oakland Board of Education,
Defendant-Appellant,
and
Gregg Desiderio, individually
and as Principal of the Valley Middle School,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
459 N.J. Super. 400 (App. Div. 2019).
Argued Decided
September 14, 2020 June 8, 2021
Aileen F. Droughton argued the cause for appellants
Oakland Board of Education and Gregg Desiderio (Traub
Lieberman Straus & Shrewsberry, attorneys; Aileen F.
Droughton, on the briefs).
Betsy G. Ramos argued the cause for appellant Oakland
Board of Education (Capehart & Scatchard, attorneys;
Betsy G. Ramos, on the briefs).
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Gerald Jay Resnick argued the cause for respondent
(Resnick Law Group, attorneys; Gerald Jay Resnick on
the briefs).
Andrew Dwyer argued the cause for amicus curiae
National Employment Lawyers Association of New
Jersey (The Dwyer Law Firm, attorneys; Andrew Dwyer,
of counsel and on the briefs).
Benjamin Folkman argued the cause for amicus curiae
New Jersey Association for Justice (Folkman Law
Offices, attorneys; Benjamin Folkman, Eve R. Keller,
Lauren M. Law, Sarah Slachetka, and Paul C. Jensen, Jr.,
on the briefs).
Renee Greenberg, Deputy Attorney General, submitted a
brief on behalf of amicus curiae Attorney General of New
Jersey (Gurbir S. Grewal, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General, of
counsel, Mayur P. Saxena, Assistant Attorney General,
on the brief, and Renee Greenberg and Latoya L. Barrett,
Deputy Attorneys General, on the brief).
Edward G. Sponzilli submitted a brief on behalf of
amicus curiae Rutgers, the State University of New
Jersey (Norris McLaughlin, attorneys; Edward G.
Sponzilli, of counsel and on the brief, and Annmarie
Simeone, and Anthony P. D’Elia, on the brief).
Richard A. Friedman submitted a brief on behalf of
amicus curiae New Jersey Education Association
(Zazzali, Fagella, Nowak, Kleinbaum & Friedman;
attorneys; Richard A. Friedman, of counsel and on the
brief, and Craig A. Long, on the brief).
Christine P. O’Hearn submitted a brief on behalf of
amicus curiae the New Jersey Municipal Excess Liability
Fund (Brown & Connery, attorneys; Christine P.
O’Hearn, and Kathleen E. Dohn, on the brief).
2
JUSTICE LaVECCHIA delivered the opinion of the Court.
This appeal raises two compelling issues for resolution by this Court.
Unfortunately, the case arises from a tragic event.
Plaintiff Mary Richter, a longtime diabetic and teacher, experienced a
hypoglycemic event in a classroom, which she claims happened because her
work schedule prevented her from eating her lunch early enough in the day to
maintain proper blood sugar levels. She fainted, hit her head on a science
laboratory table, and sustained serious and permanent life-altering injuries.
Although Richter recovered benefits under the Worker’s Compensation
Act (WCA), N.J.S.A. 34:15-1 to -146, she pursued through this action a claim
under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, alleging
that her employer failed to accommodate her pre-existing disability.
According to Richter, in the months leading up to the incident, she repeatedly
asked her school principal to change her schedule of teaching and cafeteria
monitoring so she could manage her blood sugar levels by having her lunch
earlier in the day, but he failed to accommodate her request.
The first issue we must address is whether Richter is required to
establish an adverse employment action -- such as a demotion, termination, or
other similarly recognized adverse employment action -- to be able to proceed
3
with an LAD failure-to-accommodate disability claim. According to
defendants, an adverse employment action is a required element of a failure-to-
accommodate claim and Richter’s pleading is fatally deficient for not
including that element. We now put to rest that contention and hold that an
adverse employment action is not a required element for a failure-to-
accommodate claim under the LAD.
The second issue raised by this appeal is whether plaintiff’s claim is
barred by the “exclusive remedy provision” of the WCA because she recovered
workers’ compensation benefits. According to defendants, to the extent
Richter’s LAD claim includes a demand for damages for bodily injuries or
their equivalent, it is barred under N.J.S.A. 34:15-8 unless she proves that
defendants engaged in an intentional wrong. For the reasons set forth herein,
we conclude that plaintiff’s LAD claim based on defendants’ alleged failure to
accommodate her pre-existing diabetic condition is not barred by the WCA,
and we reject the further contention that plaintiff must filter her claim through
the required showings of the “intentional wrong exception.”
Accordingly, we affirm with modification the judgment of the Appellate
Division, and we remand this matter for trial.
4
I.
A.
Because this appeal arises from a summary judgment record, we recite
the facts in the light most favorable to the party opposing the motion for
judgment, here plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995).
Richter was working as a science teacher, employed by the Oakland
Board of Education (Board) and assigned to the Valley Middle School (VMS)
at the time of the events that led to this action. Some background on the
structure of the school year and school day at VMS is necessary to understand
Richter’s claim that defendants failed to accommodate her disability due to her
pre-existing condition as a type 1diabetic. 1
1
“Type 1 diabetes, once known as juvenile diabetes or insulin-dependent
diabetes, is a chronic condition in which the pancreas produces little or no
insulin. Insulin is a hormone needed to allow sugar (glucose) to enter cells to
produce energy. . . . Despite active research, type 1 diabetes has no cure.
Treatment focuses on managing blood sugar levels with insulin, diet and
lifestyle to prevent complications.” Mayo Clinic, Type 1 diabetes,
https://www.mayoclinic.org/diseases-conditions/type-1-diabetes/symptoms-
causes/syc-20353011. See also Stedman’s Medical Dictionary 530 (28th ed.
2006) (defining Type 1 diabetes as “a condition characterized by high blood
glucose levels caused by a total lack of insulin. Occurs when the body’s
immune system attacks the insulin-producing beta cells in the pancreas and
destroys them. The pancreas then produces little or no insulin. Type 1
diabetes develops most often in young people but can appear in adults.” ). The
record indicates that Richter developed diabetes as a juvenile.
5
VMS’s school year is divided into four academic marking periods. Each
school day is divided into eight time periods. Students are assigned to eat
lunch during either the fifth or the sixth time periods, which together last from
11:31 a.m. to 1:02 p.m. During those lunch periods, certain teachers are
assigned to cafeteria monitoring duty, where they are responsible for
supervising the students eating lunch. Accordingly, depending on their overall
schedule, some teachers assigned to lunch duty must wait to eat their own
lunch until seventh period, which is from 1:05 to 1:49 p.m.
At the start of the 2012-2013 school year, Richter received her schedule
for the first marking period and learned that on Wednesdays and Thursdays she
was assigned to lunch duty during fifth period, followed by an instructional
class during sixth period; accordingly, she would not eat her own lunch until
seventh period. Believing that waiting until seventh period to eat lunch would
negatively affect her blood sugar levels, Richter asked VMS’s principal, Gregg
Desiderio, on the first day of school to adjust her schedule so she could eat
lunch during fifth period. Desiderio told Richter he would “look into it.”
On September 10, 2012, Richter followed up with an email to Desiderio,
asking if he was “able to figure out a way to flip [her] lunch and duty periods
on Wednesday and Thursday.” Richter explained in the email that she had
“tried a couple different things” to keep her blood sugar regulated, but those
6
steps were of no avail. Desiderio did not respond to the email. Richter asserts
that when she spoke again with Desiderio, he again stated that he would “look
into it.”
During one conversation with Richter, Desiderio told her that he did not
believe he could “undo what he did” with the schedule; according to Desiderio,
he also told Richter that if she was having trouble on a particular day, she
could go to cafeteria duty late or skip it altogether. Richter denies that
Desiderio ever said she could completely skip cafeteria duty, and it is
undisputed that Desiderio never changed her schedule prior to the accident.
For the remainder of the first marking period, Richter attended to her cafeteria
duties and ingested glucose tablets to maintain her blood sugar levels.
For the second marking period, Richter’s request for a fifth-period lunch
was accommodated. But when the schedule for the third marking period
issued, Richter was once again scheduled on Tuesdays for cafeteria duty
during fifth period, an instructional class during sixth period, and her lunch
during seventh period. Richter immediately approached Desiderio, who
acknowledged that he had made a mistake when setting the third-marking-
period schedule. Desiderio nonetheless declined to change the schedule,
explaining that he needed three teachers on cafeteria duty each day. He told
Richter that if she was not feeling well, she could sit down, have a snack, and
7
report to duty once she was feeling better. Richter asked for Desiderio’s
instructions to be put in writing. He did not do so, nor did he change the
schedule or direct anyone in the school’s main office to change the schedule.
Although a union representative told Richter that she would not be
disciplined for skipping cafeteria duty, Richter continued to attend her
assigned cafeteria duty during the third marking period, believing Desiderio’s
additional directions needed to be in writing or the schedule needed to be
changed. Richter feared that if an emergency occurred in the cafeteria while
she was scheduled for duty, but not present, she could be held liable. As a
result, on Tuesdays, Richter’s blood sugar levels often fell below the normal
range by the close of sixth period, requiring her to ingest glucose tablets.
On March 5, 2013, near the end of one such sixth period, Richter
suffered a hypoglycemic event in front of her students. She had a seizure, lost
consciousness, and struck her head on a lab table and the floor, causing
extensive bleeding. Richter was transported to a hospital for treatment. Prior
to that, she had never passed out at work.
After the accident, in a text exchange with Desiderio, Richter again
asked him to change her schedule. Desiderio responded that he previously told
her not to attend fifth period cafeteria duty, but he agreed to cross her name off
the schedule for cafeteria duty.
8
As a result of her fall, Richter suffered serious and permanent injuries,
including: total loss of smell; meaningful loss of taste; dental and facial
trauma; tinnitus; insomnia; tingling in her fingers; extraction of her right front
tooth, implantation of a dental bridge and bone grafts; altered speech; neck
pain and radiation to her posterior shoulder; paranesthesia and dysesthesias;
post-concussion syndrome; vertigo; dizziness; severe emotional distress; and
decreased life expectancy. She also lost sick days and incurred dental costs
not covered by insurance.
Richter filed a workers’ compensation claim for the work-related
injuries. The Board paid $18,940.94 for Richter’s medical bills and $9,792.40
for temporary disability benefits. Subsequently, she received $77,200 in
partial total permanent disability benefits.
B.
On March 2, 2015, Richter filed this action rooted in LAD disability
discrimination for failure to accommodate her diabetic condition against the
Board and Desiderio, individually and in his capacity as principal. Richter
sought compensatory damages for her economic, physical, and emotional
injuries, as well as punitive damages.
Defendants moved for partial summary judgment on the basis that
Richter’s bodily injury claim was barred by the exclusive remedy provision of
9
the WCA. In an oral opinion, the motion judge held that under the WCA’s
intentional wrong exception, Richter’s bodily injury claim was not barred.
Following that denial, defendants moved for summary judgment again,
alleging that Richter failed to establish a prima facie failure -to-accommodate
claim under the LAD because she suffered no adverse employment action.
Richter filed a cross-motion for summary judgment arguing that she did suffer
an adverse action and could establish a prima facie claim. Defendants also re-
filed a motion to dismiss Richter’s bodily injury claim under the WCA, or in
the alternative, to be entitled to a 100% credit for the WCA award already
paid; defendants additionally sought to bar Richter’s medical bills and lost
wages from being presented at trial.
In a written opinion, a different motion judge granted defendants’
motion for summary judgment and denied Richter’s motion, determining that
Richter did not suffer an adverse employment action because she was not fired
or reassigned to another position and was thus unable to establish a prima facie
failure-to-accommodate claim.
Addressing Richter’s argument that she did not need to demonstrate an
adverse employment action, the judge acknowledged that Victor v. State, 203
N.J. 383 (2010), suggested in dicta that an adverse employment action may not
be a necessary element for an LAD failure-to-accommodate claim; the judge
10
nevertheless concluded that “an adverse employment action remains a required
element of a prima facie failure to accommodate claim under the NJLAD.”
After the court rejected their motions for reconsideration, both parties
appealed.
C.
In a careful and comprehensive published decision authored by Judge
Sumners, the Appellate Division reversed the grant of summary judgment to
defendants and affirmed the denial of Richter’s summary judgment motion,
sending the matter back for trial. Richter v. Oakland Bd. of Educ., 459 N.J.
Super. 400, 412-13, 419-20 (App. Div. 2019).
The court began with the arguments raised in Richter’s appeal,
addressing first whether a prima facie disability-accommodation claim under
the LAD requires establishing an adverse employment action. See id. at 412-
16.
The court pointed to the analysis in Victor that while an adverse
employment action has generally been recognized as a required element for a
disability-accommodation claim, the LAD’s broad remedial purpose may
“permit plaintiffs to proceed against employers who have failed to reasonably
accommodate their disabilities or who have failed to engage in an interactive
process even if they can point to no adverse employment consequence that
11
resulted.” Id. at 414-15 (quoting Victor, 203 N.J. at 421). The court also
noted that in Royster v. State Police, this Court articulated the elements
required to establish a prima facie LAD failure-to-accommodate claim
“without including the requirement that an adverse employment action must be
proven.” Richter, 459 N.J. Super. at 415-16 (citing 227 N.J. 482, 500 (2017)).
The Appellate Division’s interpretation of Victor and Royster led it to
conclude “that Richter’s LAD claim for failure to accommodate her diabetes
disability should not have been dismissed on summary judgment based on a
lack of adverse employment action.” Id. at 416. Even so, the court rejected
Richter’s contention “that defendants’ refusal to accommodate an employee’s
disability constitutes an adverse employment action.” Id. at 417. The court
applied a standard for assessing an adverse employment action that examined
whether defendant’s actions “materially alter[ed] the terms and conditions of
. . . employment” and concluded that Richter’s claim did not meet it. Id. at
418.
Next, the court affirmed the denial of Richter’s summary judgment
motion. Id. at 419-20. The court recognized that it is undisputed that
defendants knew about Richter’s disability and that Richter requested
accommodations, but it found that a reasonable jury could determine that
“defendants participated in the interactive process and made a good faith effort
12
to provide [Richter] with an accommodation.” Id. at 420. The court pointed to
statements by Desiderio and others that “Richter was verbally told at the
beginning of the third marking period -- prior to her fall on March 5, 2013 --
that she did not have to perform her fifth period cafeteria duty if she felt she
needed to eat her lunch.” Ibid. Although it found that summary judgment
could not be entered in favor of Richter, the Appellate Division reinstated
Richter’s claim for punitive damages under the LAD. Ibid.The Appellate Division then turned to defendants’ cross-appeal and
addressed whether Richter’s bodily injury claim is barred by the WCA’s
exclusive remedy provision, and, if not, whether her employer “should receive
100% credit for the worker’s compensation payments it made” in the event of
a jury award in Richter’s favor. Id. at 421.
The appellate court recognized that when an employee pursues remedies
under the WCA, she generally “gives up the right to pursue common law
claims for work-related injuries.” Ibid. However, the court noted the
intentional-wrong carve-out to the exclusivity bar and, applying that exception,
reasoned that Richter’s claim “is not barred by the [WCA’s] exclusive remedy
provision” because, when viewing the allegations in the light most favorable to
Richter, “Desiderio intentionally refused her accommodation request, and it
was substantially certain that she could suffer a hypoglycemic event.” Id. at
13
423. Moreover, as explained by the court, “[t]his is not the ‘simple fact of
industrial life’ envisioned by the [WCA].” Ibid. (quoting Laidlow v. Hariton
Mach. Co., Inc., 170 N.J. 602, 623 (2002)). The court found additional
support for its conclusion in Schmidt v. Smith, in which the Appellate Division
recognized that “there is no language in the LAD that mandates that claims
made by employees against employers under [the LAD] may only be brought”
via the WCA. Richter, 459 N.J. Super. at 423 (quoting Schmidt, 294 N.J.
Super. 569, 585 (App. Div. 1996), aff’d, 155 N.J. 44 (1998)). Accordingly,
the Appellate Division reversed the grant of summary judgment to defendants
and held that “Richter can present her bodily injury claims directly arising
from her LAD claim to the jury.” Ibid.Finally, the Appellate Division rejected the argument that defendants
must receive a 100% credit for the workers’ compensation award paid to
Richter. The court held that, under N.J.S.A. 34:15-40(b) (Section 40), the
employer would be entitled only to a lien -- totaling only two-thirds the
amount it paid in workers’ compensation to Richter in medical payments and
temporary benefits -- on the jury award, with the remaining one-third allocated
to reimburse Richter’s compensation counsel. Id. at 425-26. 2
2
The Appellate Division did not mention the partial total permanent disability
amount paid in settlement to Richter in a final resolution of the compensation
14
We granted defendants’ petition for certification limited to “whether an
employee alleging discrimination for failure to accommodate a disability,
pursuant to the [LAD], is required to show an adverse employment action; and
whether plaintiff’s claim is barred by the exclusive remedy provision of the
[WCA].” 240 N.J. 58 (2019). We also granted motions by the New Jersey
Association for Justice (NJAJ), the National Employment Lawyers Association
of New Jersey (NELA), and the Attorney General to appear as amici curiae.
II.
The parties advance the following arguments with respect to whether a
failure-to-accommodate claim requires the showing of an adverse employment
action.
Defendants argue that the Appellate Division erred in concluding that a
plaintiff can present a prima facie case for a failure to accommodate without
showing an adverse employment action. They contend that the appellate court
misapplied dicta in Victor and Royster. In support, defendants point to state
and federal court decisions that, since Victor was decided in 2010, have
continued to require an adverse employment action as an element for an LAD
failure-to-accommodate claim.
claim. We are unaware from this record of the fees attributable to
compensation counsel for those benefits and whether the settlement addressed
them in any way; thus, we do not comment further on those benefits.
15
Richter, on the other hand, argues that the Appellate Division rightfully
relied on Victor and Royster in holding that an adverse employment action is
not a requirement for a failure-to-accommodate claim. She contends that the
Appellate Division’s approach is also consistent with several United States
Courts of Appeals’ decisions applying the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101 to 12213.
Amici NJAJ, NELA, and the Attorney General all similarly argue that
Richter need not allege a distinct adverse employment action in order to bring
a failure-to-accommodate claim. NELA and the Attorney General both add
that a failure to accommodate may itself constitute an adverse employment
action.
III.
We turn first to the necessary elements for a failure-to-accommodate
claim brought by an individual claiming disability discrimination under the
LAD.
A.
“The LAD prohibits employment discrimination on the basis of a
disability.” Potente v. County of Hudson, 187 N.J. 103, 110 (2006) (citing
N.J.S.A. 10:5-4.1, -29.1). Although the LAD does not explicitly address a
reasonable accommodation requirement or claim, “our courts have uniformly
16
held that the [LAD] nevertheless requires an employer to reasonably
accommodate an employee’s” disability. Royster, 227 N.J. at 499 (alteration
in original) (quoting Potente, 187 N.J. at 110). That requirement was codified
in a regulation by the agency charged with administering the LAD and
promulgating regulations for its implementation and enforcement. See
N.J.S.A. 10:5-8(g) (authorizing the adoption of regulations “to carry out the
provisions of this act”).
Under N.J.A.C. 13:13-2.5(b), “unless it would impose an undue hardship
on the operation of the business,” an employer must “make a ‘reasonable
accommodation to the limitations of an employee . . . who is a person with a
disability.’” Potente, 187 N.J. at 110 (omission in original) (quoting N.J.A.C.
13:13-2.5(b)). The Division on Civil Rights’ promulgation of N.J.A.C. 13:13-
2.5(b) in 1985 marked the genesis of reasonable-accommodation claims under
the LAD. See Victor, 203 N.J. at 400-02.
Prior to our opinion in Victor, we had approvingly recognized failure to
accommodate as a claim under the LAD and touched upon its contours. See,
e.g., Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 19-20 (2002) (recognizing
that a plaintiff can affirmatively plead “failure to reasonably accommodate as a
separate cause of action” from a discriminatory discharge or disparate
treatment claim); Potente, 187 N.J. at 110-12; Raspa v. Off. of Sheriff of
17
Gloucester, 191 N.J. 323, 337-40 (2007). However, in none of those cases did
we dwell on the necessary elements of a failure-to-accommodate claim.
Rather, the identification of elements developed in decisions issued by
the trial courts and the Appellate Division. See, e.g., Seiden v. Marina
Assocs., 315 N.J. Super. 451, 465-66 (Law Div. 1998); Muller v. Exxon Rsch.
& Eng’g Co., 345 N.J. Super. 595, 602-03 (App. Div. 2001); Bosshard v.
Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001). And,
as we recognized in Victor, those “courts uniformly identif[ied] adverse
employment consequence as one element of the prima facie case for disability
discrimination.” 203 N.J. at 413. Our discussion in Victor, however, also
noted that “[t]hose opinions [did] so . . . in part because they recite the familiar
elements consistent with any employment discrimination case, and in part
because the factual setting of each case included an adverse job consequence.”
Ibid.
It was not until Victor that this Court confronted a dispute over the
required elements of a failure-to-accommodate claim where a claimant does
not allege an adverse employment action. Id. at 412-13. In that appeal, after
reviewing the regulatory history of N.J.A.C. 13:13-2.5(b), relevant case law
from this state, and federal court cases interpreting the ADA, we
acknowledged the issue as unsettled and made the following observation:
18
The LAD’s purposes suggest that we chart a course to
permit plaintiffs to proceed against employers who
have failed to reasonably accommodate their
disabilities or who have failed to engage in an
interactive process even if they can point to no adverse
employment consequence that resulted. Such cases
would be unusual, if not rare, for it will ordinarily be
true that a disabled employee who has been
unsuccessful in securing an accommodation will indeed
suffer an adverse employment consequence.
That is, the disabled employee who is denied a
requested reasonable accommodation necessary to
perform the job’s essential functions will generally, as
a result, not be hired or promoted, or will be discharged.
Indeed, it 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.
Perhaps in those circumstances the employee
could demonstrate that the failure to accommodate
forced the employee to soldier on without a reasonable
accommodation, making the circumstances so
unbearable that it would constitute a hostile
employment environment. But there also might be
circumstances in which such an employee’s proofs,
while falling short of that standard, would cry out for a
remedy. 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.
[Victor, 203 N.J. at 421-22.]
19
Ultimately, the holding in Victor did not resolve whether an adverse
employment action is a requisite part of a prima facie failure -to-accommodate
claim because the plaintiff in that case was unable to establish the other
indisputably required elements of the claim, and the Court’s holding rested on
those failures. Id. at 422-24. The observation in Victor that an adverse
employment action may not be a necessary element remained dicta.
Seven years after Victor, this Court demarked the elements of a failure-
to-accommodate claim under the LAD. We stated in Royster that
[t]o establish a failure-to-accommodate claim under the
LAD, a plaintiff must demonstrate that he or she (1)
“qualifies as an individual with a disability, or [ ] is
perceived as having a disability, as that has been
defined by statute”; (2) “is qualified to perform the
essential functions of the job, or was performing those
essential functions, either with or without reasonable
accommodations”; and (3) that defendant “failed to
reasonably accommodate [his or her] disabilities.”
[227 N.J. at 500 (alterations in original) (quoting
Victor, 203 N.J. at 410).]
Clearly absent from that recitation is mention of an adverse employment
action as an element. Two years later, in Caraballo v. City of Jersey City
Police Department, we again recited the elements of a failure-to-accommodate
claim without including adverse employment action as a requirement. 237 N.J.
255, 267-68 (2019). In neither case, however, did we expressly hold that an
20
adverse employment action is not an element of an LAD claim for failure to
accommodate.
This appeal, with its pointed joining of issues on the question, presents
the matter head-on and thus provides the vehicle for us to definitively
determine whether a failure-to-accommodate claim under the LAD should
require a plaintiff to show an adverse employment action in order to proceed
with such a claim.
B.
As is often true, federal anti-discrimination cases provide a helpful
“source of interpretive authority.” Grigoletti v. Ortho Pharm. Corp., 118 N.J.
89, 97 (1990). It has proven advantageous to harmonize, to the extent
possible, the LAD’s development with Title VII’s development, in the interest
of “some reasonable degree of symmetry and uniformity.” Id. at 107. That
approach informs us also with respect to the ADA, notwithstanding some
differences in statutory language. See, e.g., Viscik, 173 N.J. at 16, (comparing
the scope of covered disability under federal and state law).
Victor searched for a consensus among federal courts as to the elements
of a failure-to-accommodate claim, and since then even more federal decisions
have touched on the elements question currently before us. In interpreting the
ADA, many federal courts have recited the elements of such a claim without
21
mention of a required adverse employment action, as we did for claims under
the LAD in Royster and Caraballo. See, e.g., Hill v. Assocs. for Renewal in
Educ., 897 F.3d 232, 237 (D.C. Cir. 2018) (stating that, in a failure-to-
accommodate claim, “a plaintiff must show . . . (1) that he or she has a
disability under the ADA; (2) that the employer had notice of the disability; (3)
that the plaintiff could perform the essential functions of the position . . . ; and
(4) that the employer refused to make the accommodation”); Valle-Arce v.
P.R. Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011) (stating that, to make out a
reasonable-accommodation claim under the ADA, the plaintiff had to show
“(1) that she suffers from a disability . . . , (2) that she is an otherwise qualified
individual . . . , and (3) that the [employer] knew of her disability and did not
reasonably accommodate it”); Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th
Cir. 2001) (stating that, to establish a prima facie failure-to-accommodate
claim, a plaintiff must show “(1) that he was an individual who had a disability
. . . ; (2) that the [employer] had notice of his disability; (3) that with
reasonable accommodation he could perform the essential functions of the
position . . . ; and (4) that the [employer] refused to make such
accommodations” (alterations in original) (quoting Mitchell v.
Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999)); Smith v.
Ameritech, 129 F.3d 857, 866 (6th Cir. 1997) (“[P]laintiff must prove that (1)
22
he has a disability; (2) that he is ‘otherwise qualified’ for the job; and (3) that
defendants either refused to make a reasonable accommodation for his
disability or made an adverse employment decision regarding him solely
because of his disability.” (emphasis added) (citation omitted)).
Notably, the Third Circuit Court of Appeals has taken a different
approach. Although the Third Circuit lists an adverse employment action as an
element, it recognizes that “[a]dverse employment decisions in this context
include refusing to make reasonable accommodations for a plaintiff’s
disabilities.” Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 761
(3d Cir. 2004), superseded in part by statute on other grounds, 42 U.S.C.
§ 12201(h). The Third Circuit “thus collaps[es] the two traditional proof
elements into one.” Victor, 203 N.J. at 416. It is not unique in that approach.
See Dick v. Dickinson State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016)
(requiring an adverse action as an element but noting that “[a]n employer is
also liable for committing an adverse employment action if the employee in
need of assistance actually requested but was denied a reasonable
accommodation”).
Admittedly, in the above cases in which the plaintiff prevailed, an
adverse employment action had occurred, just as was noted in Victor, so the
lack of adverse employment action as an element in those cases could reflect
23
the courts’ recognition that a clear adverse action was assumed. See Victor,
203 N.J. at 416 (commenting on Williams, 380 F.3d at 758). However, in at
least two federal cases, a plaintiff’s failure-to-accommodate claim was
permitted to proceed when no adverse employment action occurred.
In a recent en banc opinion, the United States Court of Appeals for the
Tenth Circuit affirmatively declared that “an adverse employment action is not
a requisite element of a failure-to-accommodate claim.” Exby-Stolley v. Bd.
of Cnty. Comm’rs, 979 F.3d 784, 792 (10th Cir. 2020) (en banc). The court
based its reasoning on its own failure-to-accommodate precedent, the
precedent of no fewer than six circuits stating or strongly suggesting that there
is no such requirement, the plain text of the ADA, and regulatory
pronouncements of the Equal Employment Opportunity Commission (EEOC)
responsible for administering the ADA, and it capped its conclusion with a
compelling dose of common sense, stating that,
because the ADA’s reasonable-accommodation
mandate focuses on “compelling behavior” rather than
“policing an employer’s actions,” it would make little
sense to require the showing of an adverse employment
action as part of a failure-to-accommodate claim. In
other words, it would verge on the illogical to require
failure-to-accommodate plaintiffs to establish that their
employer acted adversely toward them -- when the
fundamental nature of the claim is that the employer
failed to act.
[Id. at 797 (citation omitted).]
24
See also Garrison v. Dolgencorp, LLC, 939 F.3d 937, 941 (8th Cir. 2019). 3
C.
It is time to close debate on the elements of a failure-to-accommodate
claim under the LAD. Our course was charted in Victor’s analysis. We now
formally hold that an adverse employment action is not a required element for
a failure-to-accommodate claim.
As Victor noted, two earlier cases implicitly suggested that an employee
need not suffer an adverse employment consequence. 203 N.J. at 413-14
(discussing Tynan v. Vicinage 13 of Superior Ct., 351 N.J. Super. 385, 400-01
(App. Div. 2002), and Seiden, 315 N.J. Super. at 459-61). Victor recognized
that insistence on such a demonstration would ill serve the LAD’s broad
remedial purposes. 203 N.J. at 420-22. Further, such a requirement is not
consistent with the obligation of employers to reasonably accommodate an
3
In Garrison, the Eighth Circuit held that the plaintiff’s ADA failure -to-
accommodate claim could survive summary judgment despite no adverse
employment action having occurred. 939 F.3d at 942. Because, as noted
earlier, the Eighth Circuit had generally required an adverse employment
action in cases prior to Garrison but had viewed the alleged failure to
accommodate itself to satisfy the adverse-employment-action requirement, see
Dick, 826 F.3d at 1060, that latest decision led the Tenth Circuit to comment:
“if Garrison is a bellwether of the Eighth Circuit’s developing jurisprudence in
the ADA failure-to-accommodate context, that circuit may be erasing the thin
line that typically has separated its precedent -- albeit only nominally -- from
those circuits that have straightforwardly declined to incorporate an adverse -
employment-action requirement.” Exby-Stolley, 979 F.3d at 807 n.14.
25
employee with a disability. N.J.A.C. 13:13-2.5(b) (“An employer must make a
reasonable accommodation to the limitations of an employee . . . who is a
person with a disability, unless the employer can demonstrate . . . undue
hardship . . . .”).
The overriding purpose of the LAD’s promise to eradicate obstacles in
the workplace for persons with disabilities is to make it possible for people to
work. Given that employers have an affirmative obligation to make reasonable
accommodation, why should people who have requested but not received a
reasonable accommodation from an employer have to wait for an adverse
employment action to follow the employer’s denial or inaction -- or refusal to
even engage in an interactive dialogue about the request -- in order to bring a
complaint to compel the employer to fulfill its affirmative obligation under the
regulatory scheme? To pose the question is to answer it.
The breach of the duty can, and should, be addressable before an adverse
employment consequence occurs. The wrongful act for purposes of a failure-
to-accommodate claim is the employer’s failure to perform its duty, not a
further adverse employment action that the employee must suffer. The
persevering employee trying to make do without a reasonable accommodation
is not remediless, and a callous employer may not escape LAD liability for
failing to perform its required duty to provide accommodation simply by
26
declining to fire, demote, or take another form of adverse action against the
employee. Such an approach would essentially render the reasonable
accommodation requirement unenforceable in its own right and would run
roughshod over the Legislature’s stated intent to eradicate discrimination and
make the workplace hospitable for persons with disabilities.
To best implement that legislative intent, we conclude that an
employer’s inaction, silence, or inadequate response to a reasonable
accommodation request is an omission that can give rise to a cause of action.
Cf. Exby-Stolley, 979 F.3d at 797 (finding similarly for an ADA cause of
action). Stated otherwise, a failure-to-accommodate claim is not dependent on
causing harm to the employee through an adverse employment action. And,
certainly, the employer of an employee who suffers consequences from the
employer’s failure to accommodate should not escape LAD liability merely
because those consequences do not fit neatly into a definition of adverse
employment action. Indeed, while a lack of demonstrable consequences --
whether in the form of an adverse action, of injuries like those sustained by
Richter, or of some other type -- might affect the damages to which an affected
employee might be entitled, an employer’s failure to accommodate is itself an
actionable harm.
27
We recognize, as did the Appellate Division here, that some courts vie w
the employer’s failure to reasonably accommodate as “the” adverse
employment action for purposes of considering the rights of a person with
disabilities in the workplace. In that respect, those courts incorporate an
adverse-employment-action requirement “in a manner that is essentially form,
rather than substance” -- the analysis under that view results in the same
outcome for the plaintiff’s ability to proceed with the claim as when the
element is not required at all. Id. at 806.
We see no need to add additional formalistic hurdles to a failure-to-
accommodate claim. Indeed, given that providing a reasonable
accommodation is an employer’s obligation, see N.J.A.C. 13:13- 2.5(b), it
makes little sense to include the adverse-employment-action element, even in
form. The better, and simpler, course is to recognize that an adverse
employment action is not an element of a failure-to-accommodate claim.
Accordingly, we hold that a failure-to-accommodate claim under the
LAD does not require a plaintiff to plead and demonstrate an adverse
employment consequence as an element of a prima facie action. The Appellate
Division was correct to follow the lead of Victor, Royster, and Caraballo in
concluding that Richter’s pleading was not deficient for not including an
28
adverse-employment-action element and in denying defendants judgment on
that basis.
IV.
A.
We turn now to whether Richter’s failure-to-accommodate claim
regarding her pre-existing diabetes is barred by the WCA’s exclusive remedy
provision. On this issue, the parties’ arguments were supplemented after oral
argument when we requested additional briefing from the parties and amici on
two issues:
1. Are Law Against Discrimination (LAD), N.J.S.A.
10:5-1 to -49, claims filed by an employee against
an employer for workplace bodily injuries subject to
the exclusive remedy provisions of the Workers
Compensation Act (WCA), N.J.S.A. 34:15-8?
2. Must an employee seeking recovery for bodily
injuries under LAD prove that the employer engaged
in an intentional wrong pursuant to N.J.S.A. 34:15-
8?
We also granted the motions of Rutgers University, the New Jersey
Municipal Excess Liability Fund (MELF), and the New Jersey Teachers
Association (NJTA) to submit amicus curiae briefs.
29
B.
1.
According to defendants, Richter elected to pursue a compensation
award and would receive a windfall if she could now also pursue an LAD
claim for those same bodily injuries unless she can meet the WCA’s
intentional wrong exception. Defendants assert that exception cannot be met
here because Desiderio offered an accommodation to Richter and she had
never previously passed out at school; they maintain that defendants’ actions
therefore do not rise to the level of egregious and affirmative acts necessary
for the intentional wrong exception to apply.
Responding to our questions, and emphasizing the WCA’s function as a
“social compact” and an “historic tradeoff,” defendants assert that statutory
LAD claims are subject to the WCA’s exclusive remedy provision. Although
acknowledging that the LAD makes “[a]ll remedies in common law tort
actions” available, that LAD provision does not, in defendants’ view, reflect a
legislative intent to amend or supersede the WCA. Defendants stress that the
WCA’s exclusivity bar applies only to Richter’s bodily injury claim and does
not bar non-bodily injury LAD claims for emotional and economic harm.
Finally, defendants argue that the Appellate Division erred in its
application of N.J.S.A. 34:15-40(b). They contend that if Richter’s failure-to-
30
accommodate claim under the LAD can proceed and is successful, defendants
should receive a 100% credit for compensation payments made to her.
2.
Richter asserts that discrimination is a statutory violation and not within
the parameters of the WCA. In response to our questions, she argues that,
given the LAD’s plain language and broad remedial purposes to compensate
victims of discrimination and disincentivize discrimination, her bodily injury
claim based on the Board’s failure to accommodate is not subject to the
WCA’s exclusive remedy provision, nor need it satisfy the intentional wrong
exception. She maintains that nothing in the WCA suggests it was intended to
bar claims to compensate victims of discrimination.
In the event that the intentional wrong exception has to be satisfied for
her claim to proceed, Richter claims there is sufficient evidence that could lead
a jury to conclude that Desiderio’s actions fell within the intentional wrong
exception. She also urges adoption of the Appellate Division’s interpretation
of the proper application of N.J.S.A. 34:15-40(b) in these circumstances.
3.
As for the original amici, NJAJ initially urged affirmance of the
Appellate Division judgment on the basis that Richter’s claim falls within the
31
intentional wrong exception of the WCA. Its expanded briefing is in
substantial accord with arguments advanced by NELA.
From the outset, NELA has argued that a claim for damages under the
LAD is not subject to the WCA’s exclusive remedy provision, regardless of
whether the claim fits within the intentional wrong exception. NELA asserts
that requiring that an LAD plaintiff satisfy the intentional wrong exception
under the WCA creates conflict with our holdings that both intentional and
unintentional discrimination violate the LAD.
Elaborating in response to our questions, NELA points to the LAD’s
broad remedial purpose and language in the LAD that explicitly makes all
remedies in common law tort actions available to a prevailing plaintiff, in
addition to any other remedy provided under the LAD itself. Claiming support
for its position from the legislative history surrounding the 1990 amendment to
the LAD that allows plaintiffs to obtain all damages normally available in
common law tort actions for physical injury and illness caused by unlawful
discrimination, NELA argues that subjecting those damages claims to the
WCA’s exclusivity bar and requiring them to be filtered t hrough the
intentional wrong exception would negate the 1990 amendments and
contravene the LAD’s plain language. NELA urges us to harmonize the LAD
and the WCA.
32
NJTA is also in substantial accord with NELA that the WCA should not
impede the LAD’s implementation of the right to be free from discrimination.
NJTA asserts that, in any event, an LAD violation is sufficiently reprehensible
to constitute an intentional wrong.
4.
Entering the appeal when we requested supplemental briefing, and
supporting defendants’ position, Rutgers argues that Richter’s LAD bodily
injury claim is subject to the WCA and barred unless it fits into the WCA’s
sole exception. Rutgers submits that a contrary conclusion would undermine
the legislative intent of the WCA, cause unpredictability for employers, and
create an unfairness among employees who sustain similar injuries under
different circumstances.
MELF adds that holding LAD claims exempt from the WCA’s exclusive
remedy provision would lead to increased litigation and implicate complicated
insurance issues.
V.
The parties’ positions pit against one another two statutory schemes,
both of which are remedial in nature. We turn to the two statutory programs
involved.
33
A.
The background to the WCA is ground well-covered in many previous
decisions, but it bears repeating that “[t]he stimulus for workers’ compensation
legislation arose out of an increasing number of industrial accidents and the
inadequacies of the common-law tort remedies that were available to aid
injured workers.” Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161,
174 (1985). Enacted in 1911 in response to those inequities, the New Jersey
Workers’ Compensation Act amounted to “a historic trade-off whereby
employees relinquished their right to pursue common-law remedies in
exchange for automatic entitlement to certain, but reduced, benefits whenever
they suffered injuries by accident arising out of and in the course of
employment.” Ibid. Accordingly, the WCA provides that, “[w]hen employer
and employee shall . . . accept the provisions of” the WCA by agreement,
whether express or implied, then “compensation for personal injuries to, or for
the death of, such employee by accident arising out of and in the course of
employment shall be made by the employer without regard to the negligence of
the employer, according to the schedule [codified by the WCA].” N.J.S.A.
34:15-7.
The WCA further states:
Such agreement shall be a surrender by the parties
thereto of their rights to any other method, form or
34
amount of compensation or determination thereof than
as provided in this article and an acceptance of all the
provisions of this article . . . .
If an injury or death is compensable under this article,
a person shall not be liable to anyone at common law or
otherwise on account of such injury or death for any act
or omission occurring while such person was in the
same employ as the person injured or killed, except for
intentional wrong.
[N.J.S.A. 34:15-8.]
In the century since the enactment of the WCA, we have had numerous
occasions to interpret the WCA’s exclusivity requirement and, more
specifically, its limited “intentional wrong” exception. See, e.g., Millison, 101
N.J. at 177-84; Laidlow, 170 N.J. at 617; Tomeo v. Thomas Whitesell Constr.
Co., Inc., 176 N.J. 366, 372-78 (2003); Mull v. Zeta Consumer Prods., 176
N.J. 385, 390-93 (2003); Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J.
397, 406-11 (2003). In those encounters with the WCA, this Court developed
and then refined a two-prong test for determining whether a claim outside of
the WCA schedule met the intentional wrong exception:
(1) the employer must know that his actions are
substantially certain to result in injury or death to the
employee, and (2) the resulting injury and the
circumstances of its infliction on the worker must be (a)
more than a fact of life of industrial employment and
(b) plainly beyond anything the Legislature intended
the Workers’ Compensation Act to immunize.
[Laidlow, 170 N.J. at 617.]
35
In each of those cases, however, the injured employee brought common
law claims against their employer, as opposed to statutory claims. This case
pits a statutory claim against the WCA exclusivity bar.
B.
Richter asserts an LAD statutory claim, faulting defendants for failure to
accommodate her pre-existing diabetic disability with a schedule alteration and
claiming the range of damages available under the LAD.
The LAD has a rich history of broad application by this Court. As we
have noted, “[o]ne searches in vain to find another New Jersey enactment
having an equivalently powerful legislative statement of purpose, along with
operative provisions that arm individuals and entities with formidable tools to
combat discrimination not only through their use but also by the threat of their
use.” Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 347 (2016).
The LAD’s worthy purpose is no less than eradication of “‘the cancer of
discrimination’ in our society.” Smith v. Millville Rescue Squad, 225 N.J.
373, 390 (2016) (quoting Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 108
(2010)). Accordingly, the LAD is given liberal construction, for the “more
broadly [the LAD] is applied, the greater its antidiscriminatory impact.” Ibid.(alteration in original) (quoting Nini, 202 N.J. at 115).
36
In particular, this appeal focuses attention on the LAD’s damages
provision. In 1990, the Legislature amended the LAD in response to the
decision in Shaner v. Horizon Bancorp, 116 N.J. 433 (1989). L. 1990, c. 12.
The amendments to the LAD included providing for a right to a jury trial and
adding a provision for punitive damages. L. 1990, c. 12, §§ 1, 2. Importantly
for present purposes, N.J.S.A. 10:5-13 was amended to add common law
remedies for an LAD statutory violation:
All remedies available in common law tort actions shall
be available to prevailing plaintiffs. These remedies
are in addition to any provided by this act or any other
statute.
[L. 1990, c. 12, § 2.]
The legislative purpose for making available remedies under the
common law was explained in a separate addition to the findings and
declarations provision of the LAD:
The Legislature further finds that because of
discrimination, people suffer personal hardships, and
the State suffers a grievous harm. The personal
hardships include: economic loss; time loss; physical
and emotional stress; and in some cases severe
emotional trauma, illness, homelessness or other
irreparable harm resulting from the strain of
employment controversies; relocation, search and
moving difficulties; anxiety caused by lack of
information, uncertainty, and resultant planning
difficulty; career, education, family and social
disruption; and adjustment problems, which
particularly impact on those protected by this act. Such
37
harms have, under the common law, given rise to legal
remedies, including compensatory and punitive
damages. The Legislature intends that such damages
be available to all persons protected by this act and that
this act shall be liberally construed in combination with
other protections available under the laws of this State.
[L. 1990, c. 12, § 1, amending N.J.S.A. 10:5-3.]
Legislative history of the 1990 amendments makes clear that the
Legislature’s intent was to reinforce that the LAD supplements the common
law, and that, after Shaner, the Legislature felt the need to clarify that common
law remedies were available to employees who were victims of unlawful
discrimination. A. Judiciary, Law & Pub. Safety Comm. Statement to A. 2872
(Jan. 22, 1990). The amendments were described as “provid[ing] special
protection to persons who are victimized because of membership in a protected
class.” Ibid.
According to defendants, the WCA’s exclusive remedy provision trumps
plaintiff’s LAD failure-to-accommodate claim because reference to “common
law remedies” could not have meant to include damages that would permit
overlapping relief under the WCA and the LAD. The WCA prevails,
according to defendants, and excludes any relief under an LAD claim for
bodily injury, while permitting compensatory and punitive damages claims to
proceed for LAD violations.
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VI.
This is not the first appeal in which the Court is asked to give
precedence to one statutory scheme over another. But our duty in such
circumstances is clear: to follow the will and intent of the Legislature, which
put both schemes in place. An overriding principle of statutory construction
compels that every effort be made to harmonize legislative schemes enacted by
the Legislature. Saint Peter’s Univ. Hosp. v. Lacy, 185 N.J. 1, 14 (2005)
(“When interpreting different statutory provisions, we are obligated to make
every effort to harmonize them, even if they are in apparent conflict.”
(quoting In re Gray-Sadler, 164 N.J. 468, 485 (2000))).
A.
We have, in the past, harmonized the LAD with other statutes when
conflicts were perceived. In Fuchilla v. Layman, we had to reconcile the
demands of the notice provision of the Tort Claims Act (TCA), N.J.S.A. 59:8-
8, with an LAD claim; we concluded that the TCA notice did not apply to
LAD actions. 109 N.J. 319, 330-32 (1988). That holding was based, in part,
on the different purposes of the two statutes. We explained that
“[e]mployment discrimination is not just a matter between employer and
employee. The public interest in a discrimination-free work place infuses the
inquiry.” Id. at 335. We then noted, “In contrast to the sweep of the [LAD],
39
the [TCA] seeks to provide compensation to tort victims without unduly
disrupting governmental functions and without imposing excessive financial
burden on the taxpaying public.” Ibid. Hence, we held that “[t]he difference
between the substantive standard for negligence, which was clearly a
legislative concern in the [TCA], and the [LAD’s] implicit emphasis on motive
or intent suggests that the Legislature did not intend that the [TCA] apply to
discrimination claims under the [LAD].” Ibid.Similarly, in Cavouti v. New Jersey Transit Corp., we were faced with
the question of whether an LAD plaintiff could recover punitive damages
against a public entity, despite the TCA’s provision prohibiting punitive
damages. 161 N.J. 107, 132 (1999). There we held that
a sensible and unconstrained reading of the language of
the LAD, a consideration of the provisions of the LAD
in light of the TCA, a review of the LAD’s legislative
history, an understanding of the underlying policy
concerns in awarding punitive damages and an
examination of LAD’s remedial purposes persuade us
that the LAD allows the award of punitive damages
against public entities.
[Id. at 133.]
And other settings illustrate still further our efforts to reconcile statutory
schemes rather than interpret one as superseding another with respect to
40
enforcement of remedies provided by the Legislature for specific wrongs
intended to be deterred.
For example, in Sun Chemical Corp. v. Fike Corp., we interpreted
language similar to the language before us now in considering the interaction
of another remedial statute, the Consumer Fraud Act (CFA), with the Product
Liability Act (PLA). 243 N.J. 319 (2020). Here, the LAD declares that “[a]ll
remedies available in common law tort actions shall be available to prevailing
plaintiffs . . . [and] [t]hese remedies are in addition to any other provided by
[the LAD] or any other statute,” N.J.S.A. 10:5-13(a)(2)(b) (emphasis added),
and the Legislature expressly instructs that the LAD “be liberally construed in
combination with other protections available under the laws of this State.”
N.J.S.A. 10:5-3. In Sun Chemical, we read similar language in the CFA to
favor broad remedies for potential plaintiffs, and we concluded that the PLA
does not preempt “a claimant from seeking relief under the CFA for deceptive,
fraudulent, misleading, and other unconscionable commercial practices in the
sale of the product. Indeed, the CFA is expressly ‘in addition to and
cumulative of any other right, remedy or prohibition accorded by the common
law or statutes of this State.’” 243 N.J. at 337 (emphasis added) (quoting
N.J.S.A. 56:8-2.13).
41
B.
We reach the same conclusion with respect to the LAD and the WCA
that we reached in Sun Chemical with respect to the CFA and the PLA.
The WCA was in place when the LAD was enacted, and the Legislature
stated its clear intent that the LAD should be treated as supplemental to other
remedies. N.J.S.A. 10:5-13(a)(2)(b). The Legislature certainly would have
been aware of the WCA when it included such strong direction and when it
added the common law remedies to the LAD in 1990.
In Schmidt, the Appellate Division, which we affirmed, relied in part on
those 1990 amendments in concluding that the WCA was not the exclusive
means for managing sexual harassment in the workplace and that an LAD
action could be pursued notwithstanding the WCA. 294 N.J. Super. at 585-86,
aff’d, 155 N.J. at 51. In that case, the Appellate Division dealt with whether
an insurance provider was required to cover an employer for a hostile work
environment and sexual harassment claim brought against a company and its
president by an employee. 294 N.J. Super at 574. The employee did not seek
worker’s compensation, but rather brought an LAD claim. Ibid.In attempting to disclaim coverage, the insurance company argued that
“because of the exclusivity provision of the [WCA], plaintiff had to allege an
intentional wrong on the part of [the employer] in order to bring her civil suit.”
42
Id. at 584. Because that defense was advanced, the Appellate Division
considered “whether sexual harassment claims under LAD are exclusively
remediable under the [WCA] where the employer’s conduct is not intentional.”
Ibid. After determining that “there is no language in the LAD that mandates
that claims made by employees against employers under it may only be
brought under the [WCA,]” and that the Legislature intended for the LAD to
be “broadly applied and liberally construed,” the Appellate Division held that
the Legislature did not intend the WCA to serve as a worker’s sole and
exclusive remedy for victims alleging harassment and discrimination under the
LAD. Id. at 585-86 (highlighting N.J.S.A. 10:5-3). We affirmed the Appellate
Division in that coverage dispute, noting our agreement “that workers’
compensation is not the exclusive remedy for victims of sexual harassment”
under the LAD. Schmidt, 155 N.J. at 51.
Although the binding nature of Schmidt’s pronouncement is disputed in
this matter, we now have the opportunity to make express Schmidt’s import.
We hold that the WCA’s exclusive remedy provision does not attach to
Richter’s LAD claim. The LAD’s common law remedies made available
through the 1990 amendments do not, in this instance, pose a conflict with the
WCA. Each statute operates to fulfill different purposes, both protective of
43
workers in the workplace. The statutes can function cumulatively and
complementarily; they are not in tension, much less in conflict.
C.
The facts of the present case clearly illustrate not only how the two
statutory schemes can operate harmoniously, but why it is important that they
do.
Richter’s pursuit of her disability discrimination claim formulated as a
failure to accommodate her pre-existing disability -- diabetes -- is not at cross
purposes with the WCA’s prompt and sure remedies for medical expenses and
“personal injury,” N.J.S.A. 34:15-1, in accordance with the schedule of
benefits provided through workers’ compensation. Those benefits provide
salutary relief for workplace personal injuries, albeit it as a trade-off in that
prompt payment pursuant to the workers’ compensation schedule of payments,
see N.J.S.A. 34:15-12, may result in a lesser WCA award than what might be
available had a tort action been allowed, see Millison, 101 N.J. at 174 (stating
that under the WCA, injured employees “relinquished their right to pursue
common-law remedies in exchange for automatic entitlement to certain, but
reduced, benefits”).
Richter’s LAD claim is also not duplicative of the type of claim whose
redress is secured through the WCA and therefore should not be regarded as
44
subordinate to the WCA’s exclusive remedy feature. The LAD provides relief
under state statutes for a different workplace wrong. 4
4
Our recognition of the difference in purposes between the WCA and our
LAD brings our approach into alignment with federal anti -discrimination law.
It is understood that state workers’ compensation exclusivity provisions do not
bar claims brought under federal civil rights laws. See 9 Larson’s Workers’
Compensation Law § 100.03[1] (“Federal antidiscrimination laws such as Title
VII will trump a state workers’ compensation statute, based on the Supremacy
Clause which dictates that a state law not ‘stand as an obstacle’ to Congress’
intent, in this case that of rooting out discrimination in the workplace.”).
EEOC guidance reflects the same. In a regulatory guidance document, the
EEOC explained:
The purpose of workers’ compensation exclusivity clauses
is to protect employers from being sued under common law
theories of personal injury for occupational injury. Courts
have generally held that the exclusive remedy provisions of
state workers’ compensation laws cannot bar claims arising
under federal civil rights laws, even where a state workers’
compensation law provides some relief for disability
discrimination. Applying a state workers’ compensation
law’s exclusivity provision to bar an individual’s ADA
claim would violate the Supremacy Clause of the U.S.
Constitution and seriously diminish the civil rights
protection Congress granted to persons with disabilities.
[EEOC Enforcement Guidance: Workers’ Compensation
and the ADA (Sept. 3, 1996).]
Although the Supremacy Clause is not applicable here, we have long
held that “our LAD’s broad remedial purposes and the wide scope of its
coverage for disabilities as compared to the ADA support an expansive view of
protecting rights of persons with disabilities in the workplace.” Victor, 203
N.J. at 420-21. Were we to hold that LAD claims were barred by the
exclusivity bar of the WCA, then it would have the peculiar effect of rendering
the LAD less protective than the ADA in this context. We decline to tack our
jurisprudence in that direction, which departs from our precedent.
45
Richter’s disability is due to her pre-existing type 1 diabetes, clearly a
disabling characteristic meant to be protected by the LAD’s disability
discrimination prohibitions. See N.J.S.A. 10:5-5(q) (defining “Disability” as a
“physical or sensory disability . . . which is caused by . . . illness”). Disability
discrimination under the LAD encompasses an employer’s failure to comply
with the duty to provide reasonable accommodation of the disability unless it
causes undue hardship. N.J.A.C. 13:13-2.5(b). That duty includes the
obligation to engage in an interactive effort to attempt to reach a reasonable
accommodation. Ibid. Whether that happened here is a matter that the LAD
says is to be determined through a jury trial. N.J.S.A. 10:5-13. Richter has a
state law right to proceed with that claim.
The LAD allows the disability-discrimination claimant common law
remedies, see N.J.S.A. 10:5-3, -13, that include, as Richter’s complaint
explicitly seeks, damages for economic loss and “for emotional and physical
injury and distress.” We hold that Richter must be permitted to pursue before
a jury her LAD claims and remedies, as the LAD promises. Even defendants
recognize Richter’s right to proceed but would rewrite the LAD in these
circumstances to proscribe certain remedies that the LAD permits. That
proposed revision, however, would ill accord with the statute’s remedial
46
purpose and principles of statutory construction requiring that legislative acts
be interpreted, if possible, to operate in harmony rather than in conflict.
In sum, the two legislative acts provide relief for separate wrongs and
can co-exist in harmony, with the purposes of each fulfilled. Indeed, the two
statutory schemes, harmonized, operate to prevent double recovery. With
double recovery averted, there is no possible conflict. Thus, the full-throated
pursuit of remedies available under the LAD for actionable disability
discrimination may proceed unencumbered by the WCA exclusivity bar.
VII.
The WCA provides a workers’ compensation lien for an employer
through operation of Section 40, N.J.S.A. 34:15-40. The Appellate Division
reviewed that provision’s operation and instructed on how, if a jury awards
damages to Richter in a remand at trial of this matter, the employer may obtain
reimbursement for workers’ compensation benefits paid to her. Richter, 459
N.J. Super. at 423-26. Those directions provided that, should the jury’s award
be equivalent to or exceed the amount paid to Richter for her medical benefits
and temporary disability benefits ($28,733.84), a lien for her employer would
attach; however, the jury may not include in that amount fees and costs paid to
plaintiff’s compensation attorney. Id. at 425-26. Without detailing that
amount specifically, the Appellate Division noted that, by statute, the
47
compensation attorney’s fees (and costs not to exceed $750) could not exceed
one third of the WCA award, and the court directed that those amounts not be
included in the employer’s lien. Ibid.
We agree with the Appellate Division’s direction on this matter and
reject defendants’ argument claiming a right to “100% reimbursement.” The
theory behind prevention of a double recovery through a lien under Section 40
is to bar Richter’s receipt of duplicate damages. See id. at 424 (citing
Millison, 101 N.J. at 187 and Calalpa v. Dae Ryung Co., Inc., 357 N.J. Super.
220, 227-29 (App. Div. 2003)). That does not mean that her employer is
entitled to be reimbursed for fees plaintiff had to pay to counsel out of her
compensation award. See 459 N.J. Super. at 425-26 (quoting Section 40).
The Appellate Division properly directed the trial court on how Section
40 should operate, in the event of a jury award for Richter’s LAD failure-to-
accommodate discrimination claim in an amount that prompts application of a
Section 40 lien. The Appellate Division also properly held that the jury may
not be presented with evidence of Richter’s medical expenses and lost wages.
We affirm both rulings. And, as did the Appellate Division, we leave
application of these matters to the trial court for its sound handling.
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VIII.
The judgment of the Appellate Division is affirmed as modified and the
matter is remanded to the trial court for trial.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
LaVECCHIA’s opinion.
49