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Lawyers who represent disabled plaintiffs in discrimination cases are sure to welcome a New Jersey Appellate Division ruling that says mastectomy patients are amputees and therefore a protected class under the state Law Against Discrimination. Middlesex County, N.J., Superior Court Judge Nicholas Stroumtsos ruled in 2000 that the LAD did not protect a mastectomy patient who had been cancer-free for six years. He dismissed the plaintiff’s claim that her employer failed to make accommodation for her disability and denied her a promotion. In a July 3 decision reinstating the claim, a three-judge panel ruled that a mastectomy is an amputation that qualifies as a handicap under the LAD. That had seemingly been decided in Blume v. Denville Township Board of Education, 334 N.J. Super. 13 (App. Div. 2000). In that case, though, the plaintiff was being treated for a recurrence of her cancer at the time she was discharged from her job. Stroumtsos reasoned that Blume did not apply to plaintiff Gertrude Harris because she was cancer-free. But Judge Lorraine Parker said in the appellate opinion, “The fact that she suffered no recurrence and that she had minimal limitations on her physical capabilities does not disqualify her from protection under the LAD.” Judges Edwin Stern and Donald Collester Jr. joined in the ruling, Harris v. Middlesex County College, A-3041-00T2. Harris’ lawyers, Beth Haiet Meyer, of counsel to West Orange, N.J.’s Alpert Butler Sanders Norton & Bearg, and name partner John Norton, say the opinion dispels any notion that a claimant who has had a mastectomy must have a recurrence to make a prima facie case of discrimination. “You are an amputee and fall within the protected class under the LAD,” Haiet Meyer says. In terms of how the ruling affects plaintiffs with other forms of cancer, Norton says, “The court had an opportunity to draw a line in the sand and say that if your cancer is in remission you are no longer covered by the act. That didn’t happen.” As a result, he says, the remission issue is likely to be treated case by case in nonmastectomy cases. Harris, who taught counseling at Middlesex County College starting in 1983, claimed her disability from the 1994 mastectomy affected her ability to perform some physical tasks and that the college failed to make accommodations or promote her. The college, defended by lawyers at Morristown, N.J.’s Jackson Lewis, presented evidence that accommodations were made and that Harris wasn’t promoted because of performance. The July 3 ruling gives Harris the opportunity to pursue her claim in the trial court, but it did not give her everything she wanted. For lack of evidence, the panel affirmed dismissal of her allegations of intentional infliction of emotional distress. The panel also said that while Harris certified she was unable to clean her home, iron or lift heavy objects, she did not explain how this affected her ability to perform her job responsibilities. Nor did she articulate specific requests for physical accommodations. Norton notes, however, that the reinstatement reopens discovery on the 2000 claim.

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