By Zhen Liu, Staff Writer
Recently, the world’s highest-paid female athlete, 23-year-old Naomi Osaka made headlines when she declined to talk to the press, due to her struggles with depression and social anxiety. Many say what Osaka did would be unthinkable in many workplaces. Her openness about her mental-health struggles is a public example of private issues companies are increasingly facing as a young generation more candid about such challenges joins the workforce. Many businesses have been adjusting to meet employees’ needs with more mental-health support and services in recent years. But what happens when mental-health issues get in the way of work?
Mental illness is a disability affecting nearly 1 in 5 U.S. adults. But is it a protected disability under the New Jersey Law Against Discrimination (NJLAD). The NJLAD is a New Jersey law that protects employees and job applicants from disability discrimination. It covers New Jersey employers from the private sector and in state and local government. In addition, the Americans with Disabilities Act (ADA) is a federal law protecting disabled individuals, but the NJLAD offers additional protection to employees with mental illnesses. For example, the NJLAD applies to businesses with as few as one employee, unlike the ADA, which only applies to employers with at least 15 employees.
What Is Protected Under The NJLAD?
The NJLAD is one of the strongest anti-discrimination statutes in the country in its protection against disability discrimination. Disabilities protected by the NJLAD are very broad and even protect against conditions that may not be thought of as traditional disabilities, such as allergies, asthma, depression, obesity, and alcoholism. A disability under the NJLAD includes:
- Physical disability, infirmity, malformation, or disfigurement.
- Physical illness or disease.
- Non-physical impairments: Mental, psychological, or developmental disability that either
- 1) prevents the normal exercise of any bodily or mental functions or
- 2) can be shown to exist through clinical or diagnostic tests.
- Paralysis, amputation, epilepsy, visual/hearing impairments, speech impediments, AIDS, HIV infection, and blood traits.
Discrimination is not allowed in the following employment-related areas, including hiring and firing, pay and compensation, job assignments, promotions, layoffs and severance packages, training, and any other employment term or condition.
The ADA and NJLAD also prohibit retaliation based on a mental illness or disability. An employer, after learning about an employee’s mental illness condition, cannot attempt to retaliate against the employee by pushing him or her out, making the employment environment miserable, or by harassment. It is illegal for any employer to terminate, discipline, or otherwise retaliate against an employee who reports, complains, files a charge, or participates in an investigation regarding mental illness discrimination.
Reasonable Accommodations For Mental Illnesses
Generally, the NJLAD also requires employers to make reasonable accommodations for employees with disabilities, unless an employer can show that this “would impose an undue hardship on the operation of its business.” N.J.A.C. § 13:13-2.5(b). Examples provided by state regulations include making physical modifications to workspaces and other facilities, adjusting or modifying work schedules, and “job reassignment.” Id. at § 13:13-2.5(b)(1)(iv).
Similarly, an employer is obligated to reasonably accommodate a person’s mental illness unless doing so would cause the employer undue hardship. To show undue hardship, an employer would need to provide evidence that making a mental illness accommodation would be impossible to provide or would create a financial burden or similar hardship that would make the accommodation unreasonable.
Obviously, an employee who suffers from mentally illness is required to perform essential job functions and adhere to workplace rules of conduct once reasonable accommodations are put in place. If it can be clearly shown that a mentally ill individual cannot meet these standards, then firing the employee may be considered justified. But if the employee is meeting the standards and is still fired, that may be grounds for a discrimination claim.
How To File A NJLAD Claim?
An employee can choose whether to file an administrative claim with the New Jersey Division on Civil Rights, or file a lawsuit in the state court. NJLAD administrative claims must normally be filed within 180 days of the violation. NJLAD lawsuits in state court must normally be filed within two years of the violation. Notably, if one files an administrative claim and the Division on Civil Rights issues a finding of no cause to believe there was discrimination, he or she no longer have the option of filing a lawsuit in state court. The better course is to hire a lawyer file a lawsuit, which moves faster and is more effective than the lengthy process burdening the Division on Civil Rights
Some private employers, unions, and most state agency employers have additional internal complaint or grievance processes for complaints of disability discrimination. Filing such internal complaints usually does not stop the 180-day deadline from running to file an NJLAD charge with the NJ Division on Civil Rights, or the two-year deadline to file a NJLAD lawsuit.
There is also the option to “dual file” the administrative claims under the NJLAD and the ADA at the same time. The state and federal agencies involved have an agreement that allows this dual filing in just one application.
What Remedies Are Available?
If an employee is successful in filing a lawsuit against his or her employer for unlawful discrimination due to his or her mental illness, the prevailing employee may be entitled to be placed into the job he or she was unfairly denied, receive back pay and benefits, damages for pain, humiliation, and emotional distress caused by the unlawful discrimination, reasonable attorney’s fees and out-of-pocket expenses associated with pursuing the lawsuit. Punitive damages are imposed in certain cases where an employer’s conduct is especially outrageous.
While there is much information available online, consulting with an experienced lawyer about your options is always the best course.
Staff Writer Zhen Liu is a recent graduate from Seton Hall Law School, where she was a member of the Asian Pacific American Lawyers Association. She specializes in Family Law and serves as research assistant to associate reporters of The American Law Institute.