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Kenneth Vercammen & Associates
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Civil Model Jury Charge 2.26 FAILURE TO ACCOMMODATE


Plaintiff claims that defendant unlawfully failed to accommodate his/her disability.Specifically, plaintiff argues that defendant should have[insert description of accommodation at issue, such as modified his/her job duties or modified his/her work schedule or granted him/her a leave of absence or transferred him/her to another open position for which he/she was qualified, etc.].Defendant argues that[insert description of defendants position, such as plaintiff did not have a disability or no accommodation would have enabled plaintiff to perform the essential functions of his/her job or it was not aware that plaintiff needed an accommodation or the accommodation plaintiff sought was not reasonable or the accommodation it provided to plaintiff was adequate, etc.].

To win his/her case, plaintiff must prove each of the following elements by a preponderance of the evidence.First, plaintiff must prove that he/she had a disability.Second, plaintiff must prove that he/she was able to perform all of the essential functions of his/her job, either with or without a reasonable accommodation.Third, plaintiff must prove that defendant was aware of his/her need for a reasonable accommodation.Fourth, plaintiff must prove that there was an accommodation that would have allowed him/her to perform the essential functions of his/her job.Fifth, plaintiff must prove that defendant denied him/her accommodation.[1]

To prove the first element of his/her claim, which is that he/she had a disability, plaintiff must show that he/she had either (a) a physical condition caused by injury, birth defect, or illness or (b) a mental, psychological, or developmental condition that either (i) prevents the normal exercise of any bodily or mental functions or (ii) can be demonstrated medically or psychologically by accepted clinical or laboratory diagnostic techniques.[2]Plaintiffs disability need not be particularly serious or permanent to qualify under the law.[3]

In determining whether plaintiff has proven the second element of his/her claim, which is that he/she was able to perform all of the essential functions of his/her job, you must consider which job functions were truly essential.Whereas plaintiff bears the burden of proving that he/she could perform the essential functions of his/her job with or without reasonable accommodation, if there is a dispute between the parties about whether a particular job function is essential, defendant bears the burden of proving that the function is essential.[4]

In determining whether a job function is essential, you should consider the following principles:

a)A function may be essential because the reason the position exists is to perform the function;

b)A function may be essential because of the limited number of employees among whom that work can be distributed; and

c)A function may be essential because it is highly specialized and the person doing the job is chosen because of his or her expertise.

In deciding whether a job function is essential, you should consider written job descriptions, the amount of time that the person doing the job spends performing that particular function, the consequences of not requiring the person doing the job to perform that particular function, the terms of any union collective bargaining agreement that applies to the job, and whether other employees doing that job or similar jobs are required to perform that particular function.[5]

The third element that the plaintiff must prove is that defendant was aware of his/her need for an accommodation.In many cases, plaintiff will do so by offering evidence that he/she requested an accommodation from defendant.It is not necessary that requests for accommodation be in writing or even use the phrase reasonable accommodation.[6]An employee may use plain English and need not mention any law requiring accommodation.[7]Although there are no magic words that the employee must use, he/she must make clear to the employer that he/she needs some assistance in performing his/her job because of his/her disability.[8]However, plaintiff need not prove that he/she requested an accommodation if he/she can prove that defendant knew about his/her need for accommodation in some other way.[9]

The fourth element that plaintiff must prove is that there was an accommodation that would have allowed him/her to perform the essential functions of his/her job.Examples of reasonable accommodation include (a) making facilities used by employees accessible and usable by people with disabilities, (b) job restructuring, (c) part-time or other modified work schedules, (d) leaves of absence, (e) getting or modifying equipment or devices to allow employees with disabilities to do the job, and (f) transfer to another open position for which the employee with a disability is qualified.[10]

The last element that plaintiff must prove is that defendant denied him/her accommodation.It is important to note that if more than one accommodation would allow the employee to perform the essential functions of the job, the employer has the final say to choose between those effective accommodations, and may choose the less expensive or less difficult accommodation.[11]If defendant argues that the accommodation sought by plaintiff would have placed an undue hardship on it, then defendant has the burden of proving that undue hardship.[12]In determining whether an accommodation would impose undue hardship on the operation of an employers business, you should consider the following factors:(a) the overall size of the employers business with respect to the number of employees, number and type of facilities, and size of budget; (b) the type of the employers operations, including the make-up and structure of the employers workforce; (c) the nature and cost of the accommodation needed, taking into consideration the availability of tax credits and deductions and/or outside funding; and (d) the extent to which accommodation would involve taking away an essential function of the job.[13]

In summary, to win on his/her claim, plaintiff must prove that it is more likely than not that (1) he/she had a disability; (2) he/she was able to perform all of the essential functions of his/her job, either with or without a reasonable accommodation; (3) defendant was aware of his/her need for a reasonable accommodation; (4) there was an accommodation that would have allowed him/her to perform the essential functions of his/her job; and (5) defendant denied him/her accommodation.If you find that plaintiff failed to prove any of these elements by a preponderance of the evidence, you must render a verdict in favor of defendant.

[1]InVictor v. State, 203N.J. 383 (2010), the Supreme Court declined to decide whether a reasonable accommodation plaintiff must prove an adverse employment action separate and apart from the failure to accommodate itself.However, in dictum, the Court noted that [t]he LADs purposes suggest that we chart a course to permit plaintiffs to proceed against employers who have failed to reasonably accommodate their disabilities or who have failed to engage in an interactive process even if they can point to no adverse employment consequence that resulted.Id. at 421.

[2]N.J.S.A. 10:5-5(q).

[3]See, e.g., Viscik v. Fowler Equip. Co., 173N.J. 1, 16 (2002) (noting that the term handicapped in LAD is not restricted to severe or immutable disabilities);Enriquez v. West Jersey Health Systems, 342N.J. Super.501, 519 (App. Div. 2001) (observing that LAD is very broad and does not require that a disability restrict any major life activities to any degree);Soules v. Mount Holiness Memorial Park, 354N.J. Super.569 (App. Div. 2002) (holding that plaintiff employee with cancer who needed eight months off from work to recuperate from surgical removal of kidney was handicapped for purposes of LAD despite fact that disability was temporary).

[4]Sturm v. UAL Corp., 2000 WL 1300396 (D.N.J. Sept. 5, 2000) (holding under LAD that employer bears the burden of establishing the necessity of certain functions to the job in question).

[5]These principles are drawn directly from 29C.F.R. 1630.2(n), which is the federal regulation defining essential functions under the federal Americans with Disabilities Act.There is no definition of essential functions in the New Jersey Law Against Discrimination, the New Jersey regulations promulgated under the statute, or New Jersey state court case law interpreting the statute.

[6]Tynan v. Vicinage 13 of Superior Court of New Jersey, 351N.J. Super. 385, 400 (App. Div. 2002).



[9]See, e.g., Lasky v. Borough of Hightstown, 426N.J. Super. 68, 78 (App. Div. 2012) (holding that when plaintiffs need for accommodation is obvious, there is no requirement that plaintiff request accommodation before filing suit in order to prevail on failure-to-accommodate claim);N.J.A.C. 13:13-2.5(b)(2) (requiring employer to consider reasonable accommodation before firing, demoting, or refusing to hire or promote person with disability on grounds that disability precludes job performance).

[10]This list of potential accommodations is drawn fromN.J.A.C.13:13-2.5(b)(1).It is not intended to be exhaustive.

[11]Victor v. State, 203N.J. 383, 424 (2010).

[12]N.J.A.C.13:13-2.5(b) (requiring employer to provide reasonable accommodation unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business).


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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.


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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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