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Roy M. Victor v. State of New Jersey, New Jersey State Police, Sgt. Eric Estok, Dr. Donald Izzi, Capt. Salvatore Maggio, and Lt. Paul Wagner

07-24-08 A-6001-05T1

In plaintiff's complaint alleging discriminatory treatment based upon race and medical disability in violation of the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, he included an allegation of failure to accommodate plaintiff's
physical disability. As to that claim, we concluded plaintiff has an affirmative obligation to prove he suffered an adverse
employment action as a result of his employer's failure to accommodate his disability.

Failure to accommodate is not discrete from discrimination, but an act that may prove discrimination. More specifically, a
plaintiff must first show the three prima facie elements required in any LAD disability discrimination claim: that plaintiff was disabled yet qualified to perform the essential functions of the position of employment and suffered an adverse employment action because of the disability. The additional factors identified in Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 401-02 (App. Div. 2002), support the second element, that the employee could perform the essential functions of employment with reasonable accommodation. In other words, a plaintiff's proof of the lack of the employer's engagement in an interactive process to determine the need and availability of a reasonable accommodation, supplements the requisite presentation of a prima facie case of discrimination.

We reversed and ordered a new trial because the jury charge was legally insufficient and failed to require a finding that plaintiff suffered an adverse employment action.