New Jersey Disability Discrimination and Retaliation Prohibitions Examined by Appeals Court

New Jersey employment law prohibits both disability discrimination and retaliation against an employee who objects to disability discrimination.  A New Jersey appeals court examined both situations in the case of Algozzini vs DGMB Casino LLC, d/b/a Resorts Casino Hotel.

 

The Explosion

Bart Algozzini was director of slot operations at Resorts Casino Hotel for five years when he suffered second and third degree burns over seventy percent of his body during a boat fuel explosion on July 17, 2019. He was hospitalized for a month.  He spent two weeks in a medically induced coma, was intubated, resuscitated after a cardiac arrest, and went through multiple skin graft surgeries.  Thereafter he went to an inpatient rehabilitation, followed by outpatient physical therapy.   He was discharged from outpatient physical therapy on January 30, 2020 but still needed to walk with a cane and use a shower chair.

While Algozzini was on leave, Resorts eliminated his position.  It was the only position eliminated.  Resorts created two positions and assigned him to one of them, slot service manager, which had fewer responsibilities and paid $23,000 less per year.  He objected to the demotion alleging that it was discriminatory, but Resorts refused to reverse the demotion.

In June 2020, during Covid, Resorts terminated Algozzini and advised him that it would not be bringing him back when the casino reopened.  Thirty-nine other employees were also terminated.  Algozzini’s position was eliminated, and his supervisor and other employees performed his duties.

 

Algozzini’s Lawsuit

Algozzini filed a lawsuit against Resorts in the Law Division of the Superior Court of New Jersey.  He alleged that Resorts violated the New Jersey Law Against Discrimination by  initially demoting him and reducing his salary, and subsequently terminating him because of his disability.  He also alleged in his lawsuit that Resorts retaliated against him because of his complaint that the demotion and reduction in pay was discriminatory, also in violation of the New Jersey Law Against Discrimination.

Resorts asked the Law Division judge to dismiss Algozzini’s lawsuit because he did not have a doctor testify or prepare a report confirming that he was disabled.  The judge dismissed the discrimination claim, even though Algozzini had produced voluminous medical records indicating his injuries and limitations.  The judge also dismissed the retaliation claim because Algozzini supposedly had not proved he was disabled.

Algozzini appealed to the Appellate Division of the New Jersey Superior Court.

 

 The Appellate Division

The Appellate Division rejected the Law Division judge’s reasoning and reinstated Algozzini’s lawsuit.

The Appellate Division explained that the Law Against Discrimination protects people who are disabled, have been disabled, or are perceived to be disabled.  Disabilities therefore do not need to be permanent to be protected, and they can even have disappeared by the time the discrimination occurs. Thus, the fact that the judge placed weight on the fact that Agostini was able to recover (while ignoring the evidence) did not mean his disability was not protected under the Law Against Discrimination.  Moreover, the demotion, of which his was he only position eliminated, happened when he was still on medical leave.  And while Algozzini produced significant medical records supporting his claimed disability, his testimony alone could have allowed a reasonable juror to determine that he was disabled.

The Appellate Division also rejected the trial judge’s dismissal of Algozzini’s retaliation claim.  The first reason was that the judge was just plain wrong about Algozzini not having established that he was disabled.  However, the Appellate Division also explained that a disability is not even required for a retaliation claim.  It explained that the New Jersey Law Against Discrimination “makes it illegal for any person to take reprisals against any person because that person has opposed any practices or acts forbidden” by the Law Against Discrimination, regardless of whether the objector had a disability.

The Appellate Division therefore reinstated Algozzini’s lawsuit against Resorts and allowed it to proceed to trial.

 

The Takeaways

First, an employee’s testimony can, under certain circumstances, establish that he suffers from a protected disability.  However, it is wise not to rely on an employee’s own testimony alone because some disabilities are not quite so clear.  At the very least, a treating physician should be named as a witness.

Second, the protection against disability discrimination is very broad.  An employee could have already completely recovered from her disability by the time the discrimination occurred to be protected by the New Jersey Law Against Discrimination.  Indeed, she need not have been disabled at all if the reason for the employer’s adverse employment action was its perception that the employee had a disability.

Finally, the New Jersey Law Against Discrimination protects all employees from retaliation for objecting or complaining about discrimination whether or not they are disabled themselves.

 

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