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In Whalen v. New Jersey Manufacturers Insurance Company, Docket
No. A-3155-09T4 (N.J. App. Div. August 6, 2012), the Appellate
Division, in an unpublished per curiam decision (click here to read), found no reversible error
in a jury charge that did not differentiate between the two
distinct theories of disparate treatment and failure to
accommodate. The plaintiff, a former project coordinator in
NJM's information technology department, claimed the trial
judge had failed to separately charge her disparate treatment and
failure-to-accommodate claims. Plaintiff had Lyme's
disease, and flare ups with her disease required her to go on
short-term disability, reducing her schedule from full-time (five
days a week/40 hours) to less than full-time (four days a week/32
hours). Plaintiff did not qualify for long-term disability,
and there was a dispute as to whether Plaintiff had requested to
work on a permanent basis on a reduced work schedule of four days
per week or whether working full-time was an essential function of
her job. Based on an examination of both the responsibilities
of the position itself and the plaintiff's performance, NJM
concluded that the plaintiff's job required 40 hours of work
per week, that she could not perform the essential functions of her
job working less than 40 hours per week, and thus terminated her
for this reason.
Ms. Whalen sued NJM for disability discrimination and unlawful
termination in violation of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The case went
to trial. At the close of all the evidence, the parties
"engaged in an extensive discussion regarding the jury
charge." Although the plaintiff did not voice any
objections after the charge was given (per Rule 1:7-2), she claimed
plain error on appeal after the jury returned a defense verdict,
contending the trial judge had failed to instruct the jury about
the impact of the interactive process on the failure to accommodate
theory of liability.
The jury was instructed on the three elements of a disability
discrimination claim under LAD, the definition of the term
"essential function of the job," the four elements to
consider in determining whether NJM had engaged in the interactive
process, and the meaning of a "reasonable
accommodation." The panel concluded that although
"the better practice" would have been to charge
separately the disparate treatment and failure-to-accommodate
claims, the jury had more than sufficient facts to assess the issue
of the interactive process as well as the ultimate issue
– whether the plaintiff could perform the essential
functions of her job. Nevertheless, the panel
"renewed" its recommendation that the Committee on Civil
Jury Charges develop a separate failure-to-accommodate charge,
stating that "[t]he addition of such a charge would be
consistent with federal practice" (citing the Third
Circuit's model charge Section 9.1.2 and 9.1.3 for disparate
treatment and failure-to-accommodate claims under the ADA).
Take away: until New Jersey's Committee on Civil Jury
Charges develops a separate failure-to-accommodate jury
instruction, when faced with crafting jury charges in
failure-to-accommodate disability discrimination cases, practioners
should be guided by the courts' direction and holdings in
Whalen v. NJM (attached); Victor v. State, 401 N.J. Super. 516
(App. Div. 2008), aff'd in part and modified in part, 203 N.J.
383 (2010); Tynan v. Vicinage 13 of the Superior Court of N.J., 351
N.J. Super. 385 (App. Div. 2002); and Viscik v. Fowler Equip. Co.,
173 N.J. 1 (2002).
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