Bowers v. New Jersey Judiciary – New Jersey Employment Law Cases

According to the New Jersey Law Against Discrimination reasonable accommodations must be made by employers for their employees with disabilities. Tayeb Hyderally is an employment lawyer in the New York and New Jersey areas. He is a legal expert who specializes in employment law cases such as these and successfully litigates for the rights of his clients.

In Bowers v. New Jersey Judiciary Thomas Bowers, an Information Technology Analyst claimed that he had suffered from mental and physical distress because of workplace harassment, discrimination and retaliation.  His case claimed that the Judiciary failed to provide him reasonable accommodation according to his level of disability.

Mr. Bowers was diagnosed with Anxiety disorder and the doctor suggested that he take a medical leave from June 6 to July 1, 2007. However, due to the lack of acceptable progress his medical leave was extended several times until he was out until October 1, 2007. According to the Family Medical Leave Act, employees have at least 12 weeks of protected leave. The Judiciary told Mr. Bowers that he was exceeding this protected time and that he would be allowed to use his available vacation time. This would cover his time off until September 6. He was warned that if he was not back at work by September 10 he would be considered to be on “an unauthorized leave of absence” and would be disciplined.

After consulting his doctor and legal counsel Mr. Bower’s lawyer explained to the Judiciary that he would be back at work by October 1. The Judiciary’s answer was that he must return to work by September 10 or disciplinary actions would ensue. Their claim was that the Judiciary had “experienced significant operational hardship” due to his absence. Therefore, they were unwilling to accommodate for his disability. Effective on September 10, 2007 Mr. Bowers was terminated from his position as he had failed to return to work.

The Appellate Division decided that it should be heard by a jury to determine if the Judiciary had failed to provide reasonable accommodations for Mr. Bower’s disability which was in violation of LAD. The courts noted that Mr. Bower’s vacated position was not posted until October 2008 and that the position was not filled until January 20, 2009. Had the Judiciary simply placed Mr. Bowers on unpaid medical leave through September and then allowed him to return to the workplace on October 1 the position would have been unclaimed for only 3 weeks. However, instead, it was empty until January 20. The Judiciary claimed that they had undue financial hardship that prohibited them from filling the position any sooner. If they had overcome this budgetary constraint earlier the jury might have ruled in their favor. As it was, the jury found that the evidence supported Mr. Bower’s claim that the Judiciary failed to accommodate his disability and was in direct violation of the New Jersey Law Against Discrimination.

New Jersey Law Against Discrimination (“LAD”)

The New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq., is intended to prohibit discrimination on the basis of several protected categories, including age. However, the LAD contains an exception which permits employers to discriminate against individuals over 70. The “over 70 exception” to the LAD provides that, “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age….” N.J.S.A. 10:5-12(a).

But should this exception permit employers to refuse to renew the contracts of employees based upon their being over 70? Not according to the New Jersey Supreme Court’s recent holding in Nini v. Mercer County Community College, 202 N.J. 98 (2010).

Rose Nini worked for Mercer Community College continuously for twenty-six years under a series of contracts. Her last contract was not renewed and she sued the school for age discrimination. The school countered that since Nini was over 70 she was not covered by the LAD because of its “over 70 exception.” Nini lost in the lower courts, but prevailed in the New Jersey Supreme Court. The Nini majority found that the “over 70 exception” applies to initial hiring decisions, but not to contract renewals. The Nini Court reasoned that a contract renewal amounts to the same thing as a termination, and termination based upon age is prohibited by the LAD’s broad remedial purpose and strong public policy of eradicating discrimination in the workplace. The Supreme Court also observed that it would create a loophole in the LAD’s protections by permitting employers who want to terminate their aging employees to simply put them under contract and then not renew the contract. The Nini Court further noted that it would also have the absurd result of giving greater protections to “at will” employees (i.e., those without contracts) than to contract employees.

One caveat to the Supreme Court’s holding might be the extent of the employee’s pre- existing relationship with the employer. Nini had a long-term and successful pre-existing relationship with the college, which was a significant factor in the Supreme Court’s finding in her favor. What about the over-70 employee whose relationship is only a year or less? The Nini Court failed to address whether or not the pre-existing relationship must be of any specific length or scope. Thus, chances are that employers will try to distinguish cases in which the employee has a short pre-existing relationship from the type of lengthy career that Nini had at the college. Thus, it remains to be seen whether this will be a hard and fast rule, or may be modified down the road.