VICTOR v. STATE

r employment," N.J.S.A. 10:5-4.1, or "would prevent such person from performing a particular job," N.J.S.A. 10:5-29.1. Those exceptions, however, had long been understood to function as interpreted by the regulations embracing the reasonable accommodation paradigm created Under Section 504 and the ADA.

We can infer, since the Legislature has never amended the LAD to afford rights to the disabled that are different from those found in Section 504 and the ADA, that the regulatory interpretation matches the Legislature's intent. And we find further support for that understanding in a subsequent amendment to the LAD. In enacting a bill in 2007, see L. 2007, c. 325 (eff. Jan. 13, 2008) (amending N.J.S.A. 10:5-12 to add subsection (q)), the Legislature referred to reasonable accommodations, but only in the context of religious discrimination. In doing so, the Legislature created a framework that balances the rights of employers, employees seeking to avoid having to violate or forgo a sincerely held religious practice or observance, and other employees who might be affected thereby.

The bill as originally proposed had reasonable accommodations for religious practices as its sole focus. See A. 3451. In committee, the bill was amended to add gender identity as a protected class, to create new definitions and subsections relating to gender identity, and to bring the language of the LAD generally into compliance with the domestic partnership act. See Assembly Bill No. 3451 (amended Feb. 26, 2007 to include portions of corollary Senate Bill No. 2488 relating to gender identity, and domestic partnership statute). Those alterations did not affect the reasonable accommodation provisions.

The significance, however, of that amendment is not that it created reasonable accommodation rights for people of faith when it had not done so for people with disabilities. Instead, it is that the amendment gave people of faith rights that exceeded those afforded them through the United States Supreme Court's interpretation of Title VII. The fact that the Legislature saw the need to correct that imbalance suggests strongly that it regards the reasonable accommodation rights for people with disabilities to be appropriately protected by the extant published decisions and the regulations interpreting those rights found in the LAD in accordance with the sweeping protections of the ADA.

We have discussed the United States Supreme Court's interpretations limiting the meaning of the terms used to create accommodations under Title VII previously. See ante at 404-05 n. 6, 4 A.3d at 139 n. 6.

V.

The foregoing historical analysis sets the stage for our consideration of whether the LAD's failure to accommodate cause of action includes adverse employment consequence as one of the elements of the prima facie case.

A.

All employment discrimination claims require the plaintiff to bear the burden of proving the elements of a prima facie case. Although most employment discrimination claims proceed in accordance with the McDonnell Douglas burden-shifting paradigm, see Goodman v. London Metals Exch., 86 N.J. 19, 31-32, 429 A.2d 341 (1981) (utilizing McDonnell Douglas framework); Peper v. Princeton Univ. Ed. of Trs., 77 N.J. 55, 82-83, 389 A.2d 465 (1978) (embracing McDonnell Douglas framework), the first step in that analysis requires plaintiff to demonstrate that he or she can meet each of the elements of the prima facie case. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct at 1824, 36 L.Ed.2d at 677. We have referred to that burden as "rather modest," Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447, 867 A.2d 1133 (2005) (quoting Marzano v. Computer Sci. Corp., 91 F.M. 497, 508 (3d Cir. 1996)), but it remains the plaintiff s burden nonetheless.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the United States Supreme Court created a three-part burden shifting mechanism applicable to discrimination claims. That framework requires the plaintiff to demonstrate a prima facie case of discrimination, following which the burden shifts to the defendant to demonstrate a legitimate business reason for the employment decision. If the employer does so, the burden shifts again and the plaintiff is required to demonstrate that the reason proffered is a mere pretext for discrimination. Id. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677.

There is no single prima facie case that applies to all employment discrimination claims. Instead, the elements of the prima facie case vary depending upon the particular cause of action. For example, the prima facie elements for a complaint arising from the failure to hire, regardless of whether that claim is based on race, sex or handicap, are: (1) that plaintiff falls within a protected class; (2) that plaintiff was qualified for the work for which he or she applied; (3) that plaintiff was not hired; and (4) that the employer continued to seek others with the same qualifications or hired someone with the same or lesser qualifications who was not in the protected status. Andersen v. Exxon Co., 89 N.J. 483, 492, 446 A.2d 486 (1982). If the claim is based upon discriminatory discharge, the prima facie case is similar, in that plaintiff must demonstrate: (1) that plaintiff is in a protected class; (2) that plaintiff was otherwise qualified and performing the essential functions of the job; (3) that plaintiff was terminated; and (4) that the employer thereafter sought similarly qualified individuals for that job. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596-97, 538 A.2d 794 (1988).

On the other hand, the prima facie elements of a retaliation claim under the LAD requires plaintiff to demonstrate that: (1) plaintiff was in a protected class; (2) plaintiff engaged in protected activity known to the employer; (3) plaintiff was thereafter subjected to an adverse employment consequence; and (4) that there is a causal link between the protected activity and the adverse employment consequence. Woods-Pirozzi v. Nabisco Foods, 290 N.J.Super. 252, 274, 675 A.2d 684 (App.Div. 1996); cf. Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 371-73, 915 A.2d 518 (2007) (construing element four to include proving original complaint was made reasonably and in good faith). A hostile environment claim, first recognized by this Court as a variety of LAD discrimination, has as its prima facie elements: (1) that plaintiff is in a protected class; (2) that plaintiff was subjected to conduct that would not have occurred but for that protected status; and (3) that it was severe or pervasive enough to alter the conditions of employment. See Lehmann, supra, 132 N.J. at 603-04, 626 A.2d 445.

The LAD-based claim for retaliation is similar but not identical to the statutory claim for retaliation created in CEPA. See Tartaglia v. UBS Paine-Webber, Inc., 197 N.J. 81, 104-06, 961 A.2d 1167 (2008) (describing CEPA elements).

As these examples demonstrate, there is no single prima facie case that applies to all discrimination claims. Instead, the prima facie elements of a claim vary depending upon the particular employment discrimination claim being made. What they traditionally share, however, is the requirement that plaintiff endure an adverse employment consequence as a result of the discriminatory act.

B.

Identifying the elements of the prima facie case that are unique to the particular discrimination claim is critical to its evaluation. Disability discrimination claims are different from other kinds of discrimination claims, for several reasons. That is, for claims of disability discrimination, the first element of the prima facie case, that plaintiff is in a protected class, requires plaintiff to demonstrate that he or she qualifies as an individual with a disability, or who is perceived as having a disability, as that has been defined by statute. The second element requires plaintiff to demonstrate that he or she is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without a reasonable accommodation. See Raspa v. Office of Sheriff, 191 N.J. 323, 336, 924 A.2d 435 (2007) (explaining outer limits of LAD protections for persons with disabilities); Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 373-74, 541 A.2d 682 (1988) (noting that LAD, N.J.S.A. 10:5-2.1, does not preclude establishment of bona fide qualifications).

Notably, the statutory definitions in our LAD are significantly broader than those in the ADA or in Section 504, both of which require that the disability substantially limit a major life activity. We have described the difference by noting that, unlike the ADA, our LAD "is not restricted to `severe' or `immutable' disabilities." Viscik v. Fowler Equip. Co., 173 N.J. 1, 16, 800 A.2d 826 (2002).

Our consideration of the elements of the prima facie case for a reasonable accommodation claim begins with a review of the statutory bases for those claims. The ADA defines discrimination against persons with disabilities generally.

(a) General rule. No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

[ 42 U.S.C.A. § 12112(a).]

The ADA's specific protection relating to accommodations is found in a succeeding subsection, the purpose of which is to aid in the construction of the general rule. That section provides:

(b) Construction. As used in subsection (a), the term "discriminate against a qualified individual on the basis disability" includes[:]

. . .

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity[.]

[ 42 U.S.C.A. § 12112(b)(5)(A).]

Applying a literal reading to those provisions suggests that a disability discrimination claim must include some form of adverse employment consequence, because the general rule established in section (a) qualifies the word "discriminate" with the phrase "in regard to" and then lists several forms of employment-related actions. Continuing with a literal reading of the statute, its next provision defines the "construction" to be given to the general rule. That section, 42 U.S.C.A. § 12112(b), also supports the conclusion that the subsections that follow, one of which is the failure to reasonably accommodate, § 12112(b)(5)(A), are forms of discrimination, but that they are not separated from the adverse employment consequence requirement of the general rule set forth in § 12112(a).

Moreover, interpreting the reasonable accommodation protections in the context of the familiar prima facie cases for other forms of discrimination also suggests that an adverse employment consequence is included as an element of proof. That is, the prima facie case would require the plaintiff to prove that he or she was disabled, that he or she performed or could have performed the job with or without an accommodation, and that there was an adverse consequence. Using that framework, the second prong of the prima facie case would entail proof of either the failure to accommodate or the failure to engage in the interactive process, but it would not extinguish the requirement that plaintiff demonstrate an adverse employment consequence.

Whatever can be said about the literal language of the ADA, as we have demonstrated, the LAD does not directly answer the question because its reasonable accommodation protections are not explicit. Instead, we recognize that the LAD's overarching goal is the "eradication `of the cancer of discrimination.'" Fuchilla v. Layman, 109 N.J. 319, 334, 537 A.2d 652 (quoting Jackson v. Concord Co., 54 N.J. 113, 124, 253 A.2d 793 (1969)), cert. denied, 488 U.S. 826, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988). Affording persons with disabilities reasonable accommodation rights is consistent with the LAD's broad remedial purposes, see Viscik, supra, 173 N.J. at 19-20, 800 A.2d 826 (noting two reasonable accommodation issues in handicap discrimination litigation); Muller v. Exxon Research Eng'g Co., 345 N.J.Super. 595, 608, 786 A.2d 143 (App.Div. 2001) (noting parameters of LAD reasonable accommodation requirement), certif. denied, 172 N.J. 355, 798 A.2d 1269 (2002); Jones v. Aluminum Shapes, Inc., 339 N.J.Super. 412, 772 A.2d 34 (App.Div. 2001) (interpreting LAD to include reasonable accommodation requirement), and the administrative regulations appropriately have so recognized, see Potente v. County of Hudson, 187 N.J. 103, 110-11, 900 A.2d 787 (2006) (citing N.J.A.C. 13:13-2.5(b), -2.8(a)).

C.

It is against this background that we consider whether or not the failure to accommodate a disability in and of itself can be compensable, as the trial court concluded, or whether it must be accompanied by an adverse employment consequence, as the Appellate Division held. Because plaintiff cannot and does not assert that he suffered an adverse employment consequence as a result of the failure to accommodate him during the four-hour period on December 11, when he returned to full duty, the different approaches to this question adopted by the trial and appellate courts led to contrary outcomes for his claim.

Published decisions of New Jersey courts uniformly identify adverse employment consequence as one element of the prima facie case for disability discrimination. Those opinions do so, however, in part because they recite the familiar elements consistent with any employment discrimination case, and in part because the factual setting of each case included an adverse job consequence. For example, this Court has touched on the question of reasonable accommodations, but only as to an employee who contended that the failure to accommodate resulted in termination, making separate consideration of adverse employment consequence irrelevant. See Raspa, supra, 191 N.J. at 327, 340, 924 A.2d 435 (recognizing that some employment positions have requirements similar to the bona fide occupational qualifications set forth in federal law that impact on reasonable accommodation analysis); Potente, supra, 187 N.J. at 111, 900 A.2d 787 (concluding that employee may not raise LAD claim if he or she has refused to engage in interactive dialogue respecting potential accommodations).

Published opinions of our Appellate Division and trial courts also have included adverse employment consequence in reciting the prima facie elements of a cause of action for failure to accommodate. See, e.g., Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J.Super. 78, 90-91, 783 A.2d 731 (App.Div. 2001); Seiden v. Manna Assocs., 315 N.J.Super. 451, 465-66, 718 A.2d 1230 (Law Div. 1998). However, both of those disputes also arose in the context of employees who had been terminated. See Bosshard, supra, 345 N.J.Super, at 81, 783 A.2d 731; Seiden, supra, 315 N.J.Super. at 458, 718 A.2d 1230.

There are, however, two decisions in which our courts appear to suggest that adverse employment consequence was not needed. The first, a reference in Seiden that seems to equate the failure to accommodate with an unlawful employment practice, is included as part of the court's explanation about why the McDonnell Douglas burden-shifting framework is not useful in the context of a failure to accommodate claim. See Seiden, supra, 315 N.J.Super. at 459-61, 718 A.2d 1230 (concluding McDonnell Douglas disparate treatment analysis not necessary in failure to accommodate disability claim).

The second example is found in the Appellate Division's identification of the elements of the prima facie case for a disability discrimination claim based on an employer's failure to engage in an interactive accommodation process, in which the court did not include the requirement that the employee suffer an adverse employment consequence. See Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J.Super. 385, 400-01, 798 A.2d 648 (App.Div. 2002) (adopting standard for informal interactive process set forth in federal regulations). There, the court focused on the regulations implementing the LAD that require employers to make reasonable accommodations unless those accommodations would create an undue hardship, id. at 397, 798 A.2d 648 (quoting N.J.A.C. 13:13-2.5(b)), and the federal regulations adopted pursuant to the ADA that create an informal interactive process for finding a reasonable accommodation, id. at 400, 798 A.2d 648 (relying on 29 C.F.R. § 1630.2(0(3)). The court, in rejecting the employer's assertion that the employee had not requested an accommodation, concluded that neither a specific request nor the use of any "magic words" is needed in order for an employee to be entitled to an interactive process focused on creating or accessing an accommodation. Id. at 399-400, 798 A.2d 648.

As part of that analysis, the Appellate Division identified the elements that an employee with a disability would need to prove in order to demonstrate that the employer had failed to engage in that interactive process. Id. at 400-01, 798 A.2d 648. It did not include adverse employment consequence among those requirements, but in explaining its reasoning, the panel referred to a federal precedent that suggests implicitly the need for such a link. The panel quoted the Third Circuit's language that an "`employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations.'" Id. at 404, 798 A.2d 648 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317-18 (3d Cir. 1999)). In doing so, the court returned to the fundamental notion that there is a relationship between the accommodation and the job, and that the absence of the accommodation adversely affects the ability to do the job.

Because the plaintiff in Tynan had been terminated, id. at 389, 798 A.2d 648, the court might have found it unnecessary to comment on the need to demonstrate an adverse employment consequence. Nonetheless, the court's opinion in Tynan has given rise to the suggestion that the prima facie case does not include that element at all. Much of the debate arises from the Tynan court's reliance, on the Third Circuit's Taylor decision, in which that court identified the elements of the claim for failure to engage in an interactive process of accommodation:

To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith.

[ Taylor, supra, 184 F.3d at 319-20.]

The court in Taylor cited three earlier decisions on which it relied in devising its test, each of which set forth some, but not all, of the elements it embraced. See, e.g., M engine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997) (evaluating failure to engage in interactive process in context of Rehabilitation Act); Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1283-85 (7th Cir. 1996) (rejecting McDonnell Douglas paradigm; requiring proof of disability, employer's awareness of disability, and ability to perform essential functions of job with or without accommodation); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996) (discussing interactive process generally).

The Third Circuit in Taylor, however, did not identify those four factors as if they created the entirety of the proofs that a plaintiff must advance in order to recover under the ADA for a failure to accommodate. Rather, the opinion established its overall framework at the outset by identifying the elements of the prima facie case for ADA discrimination that all plaintiffs must prove, including an adverse employment consequence. As the court explained:

in order for a plaintiff to establish a prima facie case of discrimination under the ADA, the plaintiff must show. "(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination."

[ Taylor, supra, 184 F.3d at 306 (quoting Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d Cir. 1998) (citation omitted)).]

The Taylor decision, therefore, did not divorce failure to accommodate from the essential elements of all other disability discrimination claims; rather, the elements of the failure to accommodate claim appear as a subset of the second prong of the ordinary prima facie case.

The parties in this appeal, however, point to a more recent Third Circuit opinion, arguing that it demonstrates that in some circumstances the failure to accommodate alone satisfies the adverse employment consequence. See Williams, supra, 380 F.3d at 761 (expanding on explanation of elements of prima facie case). In Williams, the court commented that "[a]dverse employment decisions in this context include refusing to make reasonable accommodations for a plaintiffs disabilities," ibid., thus collapsing the two traditional proof elements into one. Again, however, the appeal involved an employee who was terminated rather than accommodated, id. at 758, leaving open to debate whether the court's reference to "this context" was intended to limit its explanatory phrase about the prima facie case to situations in which there has been a clear adverse employment consequence.

The strongest support for the assertion that a failure to accommodate claim can proceed absent an adverse employment consequence is found in decisions from the Seventh Circuit, one of which the Third Circuit has relied upon, albeit in a different context. See, e.g., Lavia v. Pennsylvania, 224 F.3d 190, 203-04 (3d Cir. 2000) (relying on "most penetrating analysis" of ADA's constitutionality; citing Ericksan v. Bd. of Governors, 207 F.3d 945 (7th Cir. 2000) and Stevens v. Ill. Dep't of Transp., 210 F.3d 732 (7th Cir. 2000)). The Seventh Circuit has followed its own path, coming close to explicitly recognizing failure to accommodate as a freestanding cause of action, and therefore meriting discussion.

The earliest decision in the Seventh Circuit's evolution toward a potentially freestanding cause of action rejected an employee's claim that her employer failed to reasonably accommodate her when it refused to permit her to work at home. See Vande Zande v. Wis. Dep't. of Admin., 44 F.3d 538, 544 (7th Cir. 1995). Chief Judge Posner analyzed the ADA as being more broadly protective than other civil rights legislation, because it did not simply seek to eradicate discrimination when one's disability, like one's race, is irrelevant to one's ability to do a job, but also demanded that people with disabilities be afforded reasonable accommodations to enable them to do a job in the first place. Id. at 541-42. In concluding that the plaintiffs accommodation demands, which included that she not be required to use sick time, were unreasonable, id. at 544-45, the; court did not set forth the elements of a prima facie case. However, by not directly addressing whether the loss of sick time was an adverse employment consequence, id. at 545, it set the stage for the possibility of a freestanding failure to accommodate claim.

A year later, the Seventh Circuit relied on Vande Zande to reject two different plaintiffs' failure to accommodate claims based on a reasonableness analysis, and both times in the context of a termination. See Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135-36 (7th Cir. 1996) (rejecting claim because plaintiffs preferred, specific accommodation was known only to her); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996) (relying on Beck to conclude that terminated employee who failed to report to work following short-term leave and did not advise employer of claimed continuing disability could not demonstrate failure to accommodate).

Later in 1996, however, the court issued an opinion using the language that became the basis for the assertion that there is a freestanding cause of action for failure to accommodate. See Bultemeyer, supra, 100 F.3d 1281. The court's focus was on whether the McDonnell Douglas burden-shifting paradigm had any application to a failure to accommodate claim, as opposed to a disparate impact disability discrimination claim. Id. at 1283-84. In concluding that a different analytical model should be substituted for McDonnell Douglas, the court drew a distinction between those two forms of disability discrimination. Ibid, Although that analytical approach did not suggest divorcing a failure to accommodate claim from an adverse employment consequence, the language identifying two forms of disability discrimination paved the way for that argument.

Initially, that language from Bultemeyer was cited as part of the background explanation for a disability discrimination analysis, and always in the context of a plaintiff who had suffered an adverse employment consequence associated with the failure to accommodate. See, e.g., Sieberns v. Wal-Mart Stores, 125 F. 3d 1019, 1022 (7th Cir. 1997) (citing Bultemeyer and Bombard; commenting on reasonable accommodation claims generally); Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997) (citing Bultemeyer in context of disparate treatment based on disability). Indeed, in 1999, the court returned to a traditional formulation of the elements of a prima facie case for disability discrimination based on a failure to accommodate, including as one of them that the employee demonstrate an adverse employment consequence. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999) (explaining that "to state a prima facie case of `failure to accommodate' disability discrimination, a plaintiff who has suffered an adverse employment action must show that . . . the disability caused the adverse employment action (a factor which is implied if not stated)"). That articulation has been utilized by trial courts in the Seventh Circuit. See, e.g., Lewis v. Henderson, 249 F.Supp.2d 958, 967 (N.D.Ill. 2003) (citing Foster for prima facie case; concluding plaintiff could not meet ADA definition of disability); Seisser v. Platz Flowers Supply, Inc., 129 F.Supp.2d 1130, 1134-35 (N.D.Ill. 2000) (concluding that forced retirement is adverse employment consequence); Pluta v. Ford Motor Co., 110 F.Supp.2d 742, 748 (N.D.Ill. 2000) (citing Foster test for failure to accommodate as background for disparate treatment claim).

A year later, however, the Seventh Circuit cited Foster but rearticulated the elements of a disability discrimination claim's prima facie case. See Stevens, supra, 210 F.3d at 736. Although the issue in Stevens was whether an employer was entitled to Eleventh Amendment immunity, making evaluation of the prima facie case irrelevant, the court took a new direction:

To make out a claim under the ADA, an individual must show: 1) that she is disabled; 2) that she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) that the employer took an adverse job action against her because of her disability or failed to make a reasonable accommodation.

[ Ibid, (emphasis added).]

The Stevens articulation of the prima facie test has been regularly cited in published decisions emanating from the Seventh Circuit ever since, but it has been almost invariably in failure to accommodate cases in which the plaintiff suffered an adverse employment consequence, or in claims based on other forms of disability discrimination. See, e.g., Winsley v. Cook County, 563 F.3d 598, 603 (7th Cir. 2009) (reciting test in retaliatory hostile work environment claim; concluding plaintiff did not suffer disability cognizable under ADA); Owens v. St. Agnes Healthcare, 525 F.Supp.2d 1029, 1032-33 (N.D.Ill. 2007) (reciting test in disparate treatment termination case; concluding plaintiff did not suffer disability cognizable under ADA); Jackson v. Chicago, 521 F.Supp.2d 745, 748 (N.D.Ill. 2007) (reciting test in disparate treatment case; concluding plaintiff could not demonstrate that he was qualified to perform essential job functions).

The sole published decision in which a court considered whether the Stevens decision contemplated a failure to accommodate claim free of the need to demonstrate an adverse employment consequence concluded that it did, but arose in an unusual procedural posture. See Nawrot v. CPC Int'l, 259 F.Supp.2d 716 (N.D.Ill. 2003). In that case, the plaintiff had been terminated, but as part of an appeal from an earlier verdict, his claim that the termination was discriminatory had been rejected, with the result that his failure to accommodate claim could only proceed if he did not need to prove an adverse employment consequence. Id. at 718. On remand, the court read the ADA's language about reasonable accommodations, see 42 U.S.C.A. § 12112(b)(5)(A), as an expansion rather than a clarification of the general rule proscribing discrimination, see id. at § 12112(a). The court therefore read the statute to create an affirmative duty for employers to reasonably accommodate employees' disabilities and, in doing so, also interpreted it to create a potential cause of action arising from a failure to accommodate with or without an adverse employment consequence. Nawrot, supra, 259 F.Supp.2d at 724. No court outside of the Seventh Circuit has embraced the Stevens articulation of the prima facie case for disability failure to accommodate in place of the more traditional Foster version of the test, see, e.g., Fenney v. Dakota, Minn. E. R.R. Co., 327 F.3d 707, 716 (8th Cir. 2003) (adopting Foster's requirement that there be proof of adverse employment consequence as part of prima facie case), nor followed the lead of Nawrot. Cf. Wade v. DaimlerChrysler Corp., 418 F.Supp.2d 1045, 1051 (E.D.Wis. 2006) (citing Stevens, supra, 210 F.3d at 736; Nawrot, supra, 259 F.Supp.2d at 721-23; setting forth prima facie elements in context of defendant's waiver of issue on appeal).

VI.

Although the question therefore remains unsettled in the federal courts, our LAD's broad remedial purposes and the wide scope of its coverage for disabilities as compared to the ADA support an expansive view of protecting rights of persons with disabilities in the workplace. See, e.g., Viscik, supra, 173 N.J. at 16, 800 A.2d 826 (concluding that unlike ADA, disability under LAD need not be "`severe' or `immutable' "); Clowes, supra, 109 N.J. at 593, 538 A.2d 794 (concluding that LAD covers alcoholism); Soules v. Mount Holiness Mem. Park, 354 N.J.Super. 569, 574, 808 A. 2d 863 (App.Div. 2002) (noting error of reliance on scope of anti-discrimination statutes like ADA to limit LAD's broad protections); Enriquez v. W. Jersey Health Sys., 342 N.J.Super. 501, 519, 777 A.2d 365 (App.Div.) (noting LAD's protections are broader than other state anti-discrimination statutes), certif. denied, 170 N.J. 211, 785 A.2d 439 (2001). The LAD's 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. Such cases would be unusual, if not rare, for it will ordinarily be true that a disabled employee who has been unsuccessful in securing an accommodation will indeed suffer an adverse employment consequence.

That is, the disabled employee who is denied a requested reasonable accommodation necessary to perform the job's essential functions will generally, as a result, not be hired or promoted, or will be discharged. Indeed, it is difficult for us to envision factual circumstances in which the failure to accommodate will not yield an adverse consequence. But there may be individuals with disabilities who request reasonable accommodations, whose requests are not addressed or are denied, and who continue nonetheless to toil on.

Perhaps in those circumstances the employee could demonstrate that the failure to accommodate forced the employee to soldier on without a reasonable accommodation, making the circumstances so unbearable that it would constitute a hostile employment environment. But there also might be circumstances in which such an employee's proofs, while falling short of that standard, would cry out for a remedy. We cannot foresee all of the factual settings that might confront persons with disabilities and, although hard to envision, we therefore cannot entirely foreclose the possibility of circumstances that would give rise to a claim for failure to accommodate even without an identifiable adverse employment consequence.

In spite of our recognition that the broad remedial sweep of our LAD demands vigilance in our protection of the rights of persons with disabilities, and as compelling as their plight is in facing workplace challenges that are uniquely theirs, we are constrained to refrain from resolving today the question of whether a failure to accommodate unaccompanied by an adverse employment consequence may be actionable. We do so because, in the end, this record is a poor vehicle in which to find the definitive answer to that important question. Looking at plaintiffs evidence, this record simply does not permit him to recover for a failure to accommodate, for two reasons that are entirely separate from his concession that he suffered no adverse employment consequence.

First, there is no evidence in this record that plaintiff was disabled on December 11, 2003, the only date when he asserts he was not accommodated. Although it is certainly true that he had a long medical and psychological history that qualified him as disabled, his unsupported demand to be relieved of the requirement that he go on the road in his capacity as a full-duty road trooper was not based on those disabilities. Instead, his complaint was that after he had been cleared for a return to full duty, he had sustained a new but undocumented back injury, and he believed that the new back injury qualified him as a person with a disability who was entitled to an accommodation. In light of the absence of any evidence to demonstrate that he had an injury on the day to which he has pointed throughout his litigation, his proofs on the prima facie case for failure to accommodate on December 11, 2003, would fail on the first prong, without regard to how we articulate any of the other elements of his proofs. See Viscik, supra, 173 N.J. at 16, 800 A.2d 826 ("Where the existence of a handicap is not readily apparent, expert medical evidence is required.").

Second, there is no evidence that plaintiff sought a reasonable accommodation as we or any other court has defined it. Courts have uniformly concluded that the employer's duty to offer a reasonable accommodation does not cloak the disabled employee with the right to demand a particular accommodation. See, e.g., Vande Zande v. Wis. Dep't of Admin., 851 F.Supp. 353, 359 (W.D.Wis. 1994) (concluding that "[a]lthough the ADA requires an employer to provide reasonable accommodations, an employer need not accommodate an employee in the manner that an employee requests or provide the employee with the `best' possible accommodation") (citing 29 C.F.R. App. § 1630.9), aff'd, 44 F.3d 538 (7th Cir. 1995).

As we have commented, reasonable accommodation "`refers to the duty of any employer to attempt to accommodate the physical disability of the employee, not to a duty on the part of the employer to acquiesce to the disabled employee's requests for certain benefits or remuneration.'" Raspa, supra, 191 N.J. at 339, 924 A.2d 435 (quoting Jones, supra, 339 N.J.Super. at 426, 772 A.2d 34) (rejecting employee's demand for creation of full-time light duty position). Our appellate, courts have similarly recognized that not every accommodation demand is a reasonable one. See, e.g., Tynan, supra, 351 N.J.Super. at 397, 798 A.2d 648 ("An employer's duty to accommodate . . . does not require acquiescence to the employee's every demand.") (citation and internal quotation marks omitted); Hennessey v. Winslow Tp., 368 N.J.Super. 443, 452, 847 A.2d 1. (App.Div. 2004) (explaining that employers need not accommodate employee's disability if employee is unable to perform essential job functions), aff'd, 183 N.J. 593, 875 A.2d 240 (2005); Midler, supra, 345 N.J.Super. at 606, 786 A.2d 143 (explaining that LAD does not require employer to accommodate employee with light-duty assignments, indefinite part-time work schedules, elimination of essential job function or creation of new position); Bosshard, supra, 345 N.J.Super. at 91, 783 A.2d 731 (quoting Vande Zande, supra, 851 F.Supp. at 362 and explaining LAD should be similarly interpreted).

Likewise, "[i]f more than one accommodation would allow the individual to perform the essential functions of the position, `the employer . . . has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.'" Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136-37 (8th Cir.) (citing 29 C.F.R. App. § 1630.9), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 51 (1999). Engaging in the interactive accommodation process "does not dictate that any particular concession must be made by the employer . . . [but instead what it] requires is that employers make a good-faith effort to seek accommodations." Taylor, supra, 184 F.3d at 317 (internal citation omitted).

Considered in that context, plaintiffs claim fails because to the extent that he believed he had an injury on December 11, 2003, he had available to him a wide and generous array of accommodation options not available to most employees. He had the right to report himself sick, to report to the division doctor, and to request leave. Instead of taking advantage of any of those accommodations, he reported for duty and asked an officer who was not authorized to change his duty status to allow him to work, as a full-duty road trooper, in the station doing administrative work. That request equates with a demand that a new position be created or that an accommodation that he preferred be given to him when others were available. We do not understand the LAD or the ADA to afford him that right. Moreover, later that day, when plaintiff was ordered to go out on the road, he still had the ability to take sick leave rather than comply. His choice not to do so supports our conclusion that he cannot sustain his burden of proving that he was denied a reasonable accommodation.

We concur, therefore, in the Appellate Division's judgment that the verdict must be reversed and the matter remanded for a new trial. We do so not based on that court's conclusion that there can be no claim for failure to accommodate absent an adverse employment consequence, because we have found this record an inappropriate one on which to decide that important question. Rather, we do so because, regardless of whether or not there is room in the LAD's strong protective embrace of persons with disabilities to recognize that there may be circumstances in which a failure to accommodate in and of itself gives rise to a cause of action, this plaintiffs claim for failure to accommodate cannot meet the proofs required on his prima facie case.

VII.

The judgment of the Appellate Division is affirmed as modified and the matter is remanded to the trial court for further proceedings consistent with this opinion.

For affirmance as modified/remandment — Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS — 7.

Opposed — None.