EMPLOYER CLIENT ALERT: August 2008

Disability Rights

The case of Ware vs. County of Mercer reminds us of the continuing responsibility of all employers to extend to all employees, and potential employees, equal rights and opportunity regardless of physical disability.

In 2004, the Appellate Division of the New Jersey State Superior Court issued its decision in Ware vs. County of Mercer. The Appellate Division upheld the final decision of the New Jersey Division on Civil Rights (NJDCR) holding that the defendant County of Mercer violated the New Jersey Law Against Discrimination (NJLAD) when it refused to hire the plaintiff as a corrections officer after the County discovered that the plaintiff could not satisfy the requirements for visual acuity because the plaintiff had lost his right eye in a childhood accident. Mercer County, as the employer, had withdrawn its offer of employment to the plaintiff. Contrary to the County’s argument that its actions could not be considered discriminatory, the Court found that the County’s failure to conduct an INDIVIDUALIZED ASSESSMENT of the plaintiff’s ability to do the job or to examine whether his disability might cause substantial harm to himself or to others was not reasonable.

It is interesting to note in this particular case that had further steps been taken by Mercer County to conduct an individual assessment of the plaintiff and his ability to fulfill the responsibilities of the position, and to determine whether his disability would potentially cause substantial harm to himself or to others, the decision of the County may have been upheld. Indeed, this decision appears to focus on the process utilized by the employer, not the result.

Employers must extend to all employees and prospective employees, reasonable opportunity to determine whether they are able to fulfill the responsibilities of the job. The first step in insuring such compliance is to have a DETAILED JOB DESCRIPTION for each and every position. This job description should articulate all of the reasonable responsibilities and requirements of the position.

Should you have any questions or concerns with regard to employment and labor issues, contact the Employment and Labor Practice Group at Laddey, Clark & Ryan, LLP at tryan@lcrlaw.com and (973) 729-1880.

This Laddey, Clark & Ryan, LLP Client Alert is designed to provide our friends and clients with helpful legal information. It is not intended, and should not be used, as a substitute for consultation with legal counsel.  

The Employment and Labor Practice Group

Thomas N. Ryan, Esq.	Ursula H. Leo, Esq.	Michael S. Garofalo, Esq.	Linda Day, Esq.