By Ty Hyderally Esq. and Francine Foner, Esq.

December 16, 2024

On December 10, 2024, the New Jersey Appellate Division reinstated the Amended Complaint of Jersey City IAFF Local 1066 (Union) against the City of Jersey City (City), which seeks to declare unlawful two City policies it alleges discriminate against temporarily disabled firefighters, in violation of the New Jersey Law Against Discrimination (LAD). “The first policy disqualifies a firefighter who is on sick or injury leave from receiving a promotion (promotion policy); the second penalizes firefighters for taking a certain amount of sick or injury leave within a year (excessive leave policy).” Jersey City IAFF Loc. 1066 v. City of Jersey City, 2024 N.J. Super. Unpub. LEXIS 3001, *1, 2024 WL 5054435 (App. Div., Dec. 10, 2024).

The Union’s legal action arose after firefighter Richard Mulligan (Mulligan) was denied a promotion to captain while on leave for a foot injury that he sustained while on duty in June 2022, based upon the City’s promotion policy. Before filing suit, the Union first sent a letter to the City demanding that it immediately accommodate Mulligan, as well as all similarly situated firefighters, by retroactively promoting them. When the City refused to do so, the Union filed a complaint in Hudson County Superior Court, on behalf of all non-supervisory firefighters employed by the City, seeking a declaratory judgment that the promotion policy violated the LAD’s prohibition against disability discrimination in employment. Subsequently, the City amended its complaint to also include allegations pertaining to the excessive sick leave policy also violating the LAD.

The trial court dismissed the action, based upon its conclusion that the allegedly temporarily disabled firefighters could not be deemed to be “disabled” within the meaning of the LAD, because that would include a firefighter who was out sick for even one day, which the Court held “would be inconsistent with the intent of the Legislature.” The lower court further opined that the Union “failed to provide that those named in the Amended Complaint: (i) are qualified to perform the essential functions of the job; (ii) were terminated or otherwise suffered an adverse employment action due to disability; and (4) that the employer thereafter sought similarly qualified individuals for that job.” Therefore the Court held that the Union had failed to establish a prima facie case of failure to accommodate a disability. The lower Court further agreed with the City’s argument that the Union failed to join indispensable parties required if damages were awarded, since only the Union would be receiving the damages, rather than those individuals who were discriminated against. Id. at *6-7

The Union appealed the dismissal. In an unpublished opinion, the New Jersey Appellate Division reversed the dismissal, finding that the trial court had not addressed the Union’s request for a declaratory judgment or the excessive leave policy. The Appellate Division first held that the Union, as an incorporated association, “is entitled to seek relief and challenge the policy’s validity under the [Declaratory Judgment] Act.” Id. at *8. Second, the Appellate Division found that the lower court also erred when it dismissed the Union’s action based upon the Union’s Amended Complaint not specifying the disabilities and requested accommodations of the firefighters who were not promoted because of the City’s promotion policy. The Appellate Division observed that the same was not necessary, as a Union may bring an action on behalf of its members and the Complaint did identify one firefighter who was not promoted because of the City’s promotion policy. As the Appellate Division further opined: “Plaintiff alleged temporarily disabled firefighters are a protected class under LAD and entitled to an accommodation. Plaintiff further alleged that denying an eligible firefighter a promotion without considering an accommodation is retaliatory and violates the LAD. Plaintiff alleges the promotion policy is facially discriminatory, and it has presented sufficient evidence of direct discrimination and retaliation to survive the dismissal motion regarding the promotion policy.” Id. at *9-10. The Appellate Division therefore vacated the lower court’s opinion and remanded the matter to the trial court for further proceedings.

If you believe that you have been subject to discriminatory policies in the workplace, seek out an experienced employment attorney for assistance with protecting your rights.

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