The judiciary has adopted new model civil jury charges on failure-to-accommodate claims under the Law Against Discrimination and on claims for lost future wages.
A third instruction, dealing with LAD hostile-work-environment claims, was revised to reflect differences between supervisor and nonsupervisor harassment that courts have recognized since it first was written.
The charges were approved by the Committee on Model Civil Jury Charges in February and circulated in a July 31 notice to the bar.
When model charges are unavailable, lawyers and judges must craft jury instructions themselves, which can lead to reversals on appeal if the instructions clash with applicable law.
Charge 2.26, which is new, lays out the elements that must be proven for failure-to-accommodate claims: the plaintiff's disability, inability to perform the job's essential functions, the employer's awareness of the need for a reasonable accommodation, availability of a reasonable accommodation that would have allowed to the plaintiff to perform the essential functions and the employer's denial of that accommodation.
It is footnoted that an adverse employment action is not necessary to establish a cause of action; the Supreme Court in Victor v. State, 203 N.J. 383 (2010), declined to make that requirement.
The charge also provides what the plaintiff must demonstrate to establish each element, including that he or she need not have asked verbatim for a "reasonable accommodation." According to Lasky v. Borough of Hightstown, 426 N.J. Super. 68 (App. Div. 2012), the plaintiff need not have asked at all, if the need for a reasonable accommodation is obvious.
It is also noted that if more than one accommodation would have facilitated the employee's performance, the employer has final authority to choose between those accommodations, and may settle on the less expensive or easier option — another holding from Victor.
Charge 2.34 guides the jury, after finding liability by an employer, on the plaintiff's entitlement to recovery of "front pay" — the employee's projected earnings if not for the employer's wrongdoing — and how those damages may be mitigated.
The plaintiff must prove what he or she would have earned and for how long. And in keeping with Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335 (App. Div. 2012), there also must be a "reasonable likelihood" that the plaintiff won't be able to earn that amount in the future through alternate employment or other means.
In Quinlan, where a trial judge mistakenly placed the evidentiary burden on the defendant, Appellate Division Judge Jack Sabatino noted the lack of a jury charge on front pay, asking the committee to look into the matter.
An award "does not require … mathematical exactness" but "cannot be based upon speculation," according to the charge.
Jurors are directed not to presume that the plaintiff would have served out his or her career working for the defendant-employer, but it's "equally illogical to presume" that the plaintiff would have left unless there is evidence to indicate that.
And the panel must consider, in deciding whether the plaintiff could earn as much at another position, whether the plaintiff's job would have ended for a reason unrelated to the employer's misconduct, or whether the plaintiff could earn more in the future "through more diligent effort[.]"
To reduce damages, the employer may present evidence that the plaintiff failed to mitigate or minimize front-pay losses, by failing to seek comparable employment, or through other shortfalls.
Front-pay assessment "requires sensitivity to the competing interests" of the plaintiff in being made whole, and the defendant "in being spared the duty to subsidize a prospective windfall," according to the charge.
Charge 2.25, first approved in 1999, instructs jurors on hostile-work-environment claims. It was amended in two key ways, says Kevin Wolfe, assistant director of civil practice for the Administrative Office of the Courts.
First, instructions now are the same regardless of what type of discrimination is charged.
Second, it now differentiates between harassment by a supervisor and by a nonsupervisor, which involves different evidentiary standards in establishing liability by the employer.
In Lehmann v. Toys R Us Inc., 132 N.J. 587 (1993), the Supreme Court held that the employer is strictly liable for equitable damages, including back and front pay, in cases of sexual harassment by a supervisor. Compensatory damages like emotional distress are determined by common-law principles or agency.
Though not addressed in Lehmann, since then Blakey v. Continental Airlines Inc., 164 N.J. 38 (2000), established that such harassment can implicate employer liability if the employer knew or should have known and failed to promptly and adequately address the situation.
And in Cerdeira v. Martindale-Hubbell, 402 N.J. Super. 286 (App. Div. 2008), the court held that employer liability may be based on coworker harassment if the defendant failed to institute an anti-harassment policy and complaint procedure, leading to the plaintiff's harm.
Wolfe says there are three ways the committee is alerted to charges that need to be written or amended: from Supreme Court and other notable appellate rulings; from lawyers and judges who are involved in a case where a charge is lacking and often will submit the charge they have written for the occasion; and from committee members themselves, who typically suggest model charges related to their specific practice areas.
Members of the New Jersey State Bar Association's Labor and Employment Law Section did not respond to requests for comment Tuesday.