                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                      Maryanne Grande v. Saint Clare’s Health System (A-67-15) (076606)

Argued January 31, 2017 -- Decided July 12, 2017

SOLOMON, J., writing for the Court.

         In this action brought under New Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, the
Court determines whether the Appellate Division correctly reversed the trial court’s grant of summary judgment in
favor of defendant Saint Clare’s Health System and against plaintiff Maryanne Grande, R.N.

          Grande has been a practicing registered nurse (R.N.) since 1985. She was employed by Saint Clare’s from
approximately 2000 through July 2010. Beginning in 2007, Grande suffered a series of work-related injuries.
Grande sustained her final injury in February 2010. In early July 2010, Grande’s doctor cleared her to resume full-
duty work. The hospital informed Grande that, before returning to full duty, she would have to undergo physical
testing. Lori Briglio, the nurse case manager overseeing Grande’s workers’ compensation claim, instructed Grande
to report to Kinematic Consultants, Inc. (KCI) for a functional capacity evaluation.

         Grande underwent the examination. The Report recommended maximum loads for Grande to bear,
including that Grande frequently lift no more than sixteen pounds from waist to chest. The Report noted that
Grande’s results “may be compatible with mild residual functional issues, as per complaints and/or diagnosis,” but
concluded that “[i]t is improbable that this will significantly affect job performance ability.” The Report also
explained that Grande qualified to return to work on “altered duty” based on the Report’s recommendations.

          On July 21, 2010, following the functional capacity evaluation, Dr. Spielman re-examined Grande. He
provided her with a form that indicated she could return to work the next day with restrictions, “per [the] FCE.”
Briglio advised the hospital that Dr. Spielman “agreed with the FCE report and advised that [Grande] should have
permanent restrictions of lifting up to 50 lbs occasionally and that she should transfer patient with assistance only.”
The following day, Grande was summoned to a meeting with her supervisors, at which she was fired. Grande
testified in her deposition that she was told she had limitations that would prevent her from doing her job.

        After her termination, Grande again visited Dr. Spielman, who issued another return-to-work form on
August 25, 2010, clearing Grande to return immediately to full-time, full-duty work with no limitations.

         Nearly a year after her discharge, Grande filed a two-count complaint against Saint Clare’s, alleging
violations of N.J.S.A. 10:5-4.1, a subsection of the LAD. The first count alleged that Saint Clare’s unlawfully
discriminated against Grande based on her disability, and the second count alleged unlawful discrimination based on
a perceived disability. The trial court granted summary judgment in favor of Saint Clare’s, finding that Grande did
not establish a prima facie case of discriminatory discharge because she “failed to articulate whether she was
performing (or was able to perform) her job at a level that met the employer’s legitimate expectations.”

         A divided Appellate Division panel reversed because the record contained several material facts in dispute.
According to the majority, “the motion court incorrectly resolved these materially disputed facts in favor of [Saint
Clare’s] and rejected or minimized the importance of evidence a rational jury could find to support [Grande’s] case
of unlawful discrimination due to her perceived physical disability.” The dissent found no genuine factual disputes.
Saint Clare’s filed this appeal as of right pursuant to Rule 2:2-1(a)(2), limited to whether summary judgment was
appropriately awarded to the hospital by the trial court on the facts in the record before it.

HELD: On the record before the trial court, issues of material fact exist. The Court affirms and modifies the judgment
of the Appellate Division and remands the matter to the trial court for further proceedings.
1. The LAD prohibits an employer from terminating a disabled employee because of her disability unless the
disability “reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1. To prove a
discriminatory discharge case by direct evidence, a plaintiff must produce evidence that an employer placed
substantial reliance on a proscribed discriminatory factor in making its decision to terminate the employee. If direct
evidence is unavailable, a plaintiff may prove her claim by circumstantial evidence. To evaluate circumstantial
evidence cases, this Court has adopted the three-step burden-shifting test articulated by the United States Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The Court has
modified the McDonnell Douglas framework in evaluating disability discrimination claims. (pp. 16-17)

2. The first step of the modified framework requires that a plaintiff prove by a preponderance of the evidence that:
(1) she is disabled within the meaning of the LAD; (2) she was performing her job at a level that met her employer’s
legitimate expectations; (3) she was discharged; and (4) the employer sought someone else to perform the same
work after she left. If a plaintiff successfully establishes a prima facie case, a presumption arises that the employer
unlawfully discriminated against the plaintiff. An employer may terminate a disabled employee where continued
employment “would be hazardous to the safety or health of [the employee], other employees, clients or customers.”
N.J.A.C. 13:13-2.8(a)(2); Jansen v. Food Circus Supermkts., Inc., 110 N.J. 363, 374 (1988). (pp. 17-21)

3. In addition to the above analysis, the LAD regulations require an evaluation of whether a reasonable
accommodation would have allowed the disabled employee to perform her job. The Court holds that the reasonable-
accommodation consideration belongs in the second-prong analysis. A plaintiff may satisfy the second prong of the
prima facie case for an allegation of discriminatory discharge based on a disability by putting forth evidence either
that she was actually performing her job or was able, with or without reasonable accommodation, to perform her job
to her employer’s legitimate expectations. (pp. 20-24)

4. Because Grande fails to show a hostility toward members of her class, this case must be resolved by applying the
McDonnell Douglas circumstantial evidence framework. Grande relies on Zive v. Stanley Roberts, Inc., where the
Court stated that the “slight burden of the second prong is satisfied” when a plaintiff “adduces evidence that [s]he
has, in fact, performed in the position up to the time of termination.” 182 N.J. 436, 455 (2005). Zive did not
involve an employee’s extended periods of absence from work. An issue of fact exists as to whether Grande’s
periods of absence from work preclude her from demonstrating that she was actually performing her job at the time
she was terminated. This factual dispute is material to Grande’s prima facie case. The Court reverses summary
judgment in Saint Clare’s favor and remands for trial on the record as it stands. (pp. 24-30)

5. The Court turns to Saint Clare’s alternate claim that Saint Clare’s is entitled to summary judgment on the basis of
the defenses it asserted under the second McDonnell Douglas step. To prove that Grande’s perceived disability
precluded her from performing as a R.N., Saint Clare’s must show that it reasonably arrived at its opinion. Saint
Clare’s maintains that it met this burden by relying on the KCI Report. First, there is a dispute as to whether the
lifting standards identified by the KCI Report are actually the standards applicable to Grande’s position. Second,
there is a dispute as to whether the KCI Report conclusively establishes that Grande is unable to perform her job.
These factual disputes are material to the issue of whether Grande’s disability precluded her from performing the
essential functions of her job. Saint Clare’s also maintains that Grande’s history of injuring herself on the job
sufficiently proved her inability to perform her job without posing a risk of harm to herself or others. The evidence
that Grande presented a risk of injury to herself or patients is inadequate to resolve this material issue. (pp. 30-36)

          The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
to the trial court for proceedings consistent with this opinion.

         JUSTICE LaVECCHIA, CONCURRING, underscores that, for a disability discrimination claim to
survive a summary judgment motion, the showing required of a terminated plaintiff regarding her ability to perform
the essential functions of her job is a modest one and observes that this matter is a missed opportunity to reassess the
convoluted frameworks adopted to evaluate LAD disability discrimination cases. To the extent those frameworks
apply, in Justice LaVecchia’s view, this matter would be better and more directly analyzed as a direct evidence case.

       CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE LaVECCHIA filed a separate,
CONCURRING opinion.

                                                           2
                                     SUPREME COURT OF NEW JERSEY
                                       A-67 September Term 2015
                                                076606

MARYANNE GRANDE, R.N.,

    Plaintiff-Respondent,

         v.

SAINT CLARE’S HEALTH SYSTEM,

    Defendant-Appellant.


         Argued January 31, 2017 – Decided July 12, 2017

         On appeal from the Superior Court, Appellate
         Division.

         Sean R. Gallagher (Polsinelli, PC) of the
         Colorado bar, admitted pro hac vice, argued
         the cause for appellant (McCarter & English,
         LLP and Polsinelli, PC, attorneys; Thomas F.
         Doherty, Sean R. Gallagher, and Gillian
         McKean Bidgood (Polsinelli, PC) of the
         Colorado bar, admitted pro hac vice, on the
         briefs).

         Noel C. Crowley argued the cause for
         respondent (Crowley & Crowley, attorneys).

         Richard M. Schall argued the cause for
         amicus curiae National Employment Lawyers
         Association of New Jersey (Schall & Barasch,
         LLC and Zuckerman & Fisher, LLC, attorneys;
         Richard M. Schall and Elizabeth R. Zuckerman
         on the brief).

         Benjamin Folkman argued the cause for amicus
         curiae New Jersey Association for Justice
         (Folkman Law Offices, PC, attorneys;
         Benjamin Folkman, Lauren M. Law, Eve R.
         Keller, Sarah A. M. Slachetka, Paul C.
         Jensen, Jr., on the brief).


                               1
    JUSTICE SOLOMON delivered the opinion of the Court.

    We are called upon to determine whether in this action

brought under New Jersey’s Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49, the Appellate Division correctly

reversed the trial court’s grant of summary judgment in favor of

defendant Saint Clare’s Health System and against plaintiff

Maryanne Grande, R.N.    Because we conclude that, on the record

before the trial court, issues of material fact exist, we affirm

and modify the judgment of the Appellate Division and remand the

matter to the trial court for further proceedings.

                                 I.

                                 A.

    We glean the following facts from the record considered by

the trial court, including Grande’s deposition, certifications

by Saint Clare’s and its agents, various exhibits contained

within each party’s summary judgment motion, and associated

statements of material facts.

    Grande has been a practicing registered nurse (R.N.) since

1985.   She was employed by Saint Clare’s from approximately 2000

through July 2010.    Beginning in about 2006, Grande worked in a

hospital unit in which approximately half of the patients were

stroke victims who required additional assistance with their

daily living needs.    Grande’s regular duties involved

maintaining charts, administering medication, and general

                                  2
patient care, including assisting patients with daily living

activities such as washing, bathing, dressing, walking,

repositioning patients in bed, and guarding ambulant patients

against falls.   Thirty to forty percent of the patients in

Grande’s unit wore armbands and had signage placed outside their

hospital rooms to alert staff that they were at an increased

risk of falling.

     In August 2008, the hospital performed job system analyses

for various nursing positions.    The job analysis for R.N.s (Job

Analysis) indicated the frequency with which job duties were to

be performed and identified certain tasks as essential to the

R.N. position regardless of how frequent their performance.    The

Job Analysis categorized occasional tasks as those performed “1-

33% of the day” and frequent tasks as those performed “34-66% of

the day.”    Essential tasks were described as the “[e]ssential

function[s] of [the] job.”    One essential duty of an R.N. is to

lift fifty pounds from waist to chest “frequently.”   According

to the certification of Heather Jordan, Saint Clare’s human

resources supervisor, the weightlifting requirements within the

Job Analysis are identical for all R.N.-staffed units in the

hospital.1


1 The only job description provided by the hospital is the Job
Analysis, prepared in 2008, eight years after Grande began
working at Saint Clare’s. The description indicates that it
applies to “Job Title: Nursing, RN, LPN, NA; Acute Care,
                                  3
    Beginning in 2007, prior to the Job Analysis, Grande

suffered a series of work-related injuries.      The first occurred

in March 2007, when she injured her left shoulder while

repositioning a patient in bed.       Grande was unable to continue

working that day, immediately saw a doctor, and reported the

incident to Saint Clare’s.   She had surgery on her shoulder in

April, followed by physical therapy.       Grande spent about three

months recovering at home before returning to work on a full-

time but “light duty” basis, which included chart

administration, compliance review, and similar administrative

tasks.   Less than a month later, Grande returned to full duty,

including patient care.

    The second injury occurred in May 2008, when Grande felt

pain in her right shoulder while repositioning a patient in bed.

Grande reported the incident immediately to Saint Clare’s and

saw a doctor, who performed a magnetic resonance imaging (MRI).

The test found no injury, and Grande returned to full duty

within two weeks.   The record is unclear as to whether Grande’s

work was restricted following the May 2008 injury.




Medical-Surgical, Emergency Services.” It makes no distinction
between R.N.s working in the stroke ward and those in acute
care, medical-surgical, or emergency services. There is nothing
in the record that indicates a similar job description existed
prior to 2008.
                                  4
    In November 2008, Grande re-injured her left shoulder while

lifting the legs of a 300-pound patient.       As before, Grande

immediately saw a doctor and reported the incident to her

employer.    Grande was unable to return immediately to work,

underwent a second surgery on her left shoulder, and returned to

full duty about six months after the incident.

    Grande sustained her final injury in February 2010 when she

was alone in a room caring for an overweight patient who was

moving from a stretcher to a bed.      While Grande stood on the far

side of the bed, the patient began to fall.       Grande leapt onto

the bed, grabbed the patient’s shoulders from behind, and pulled

the patient onto the bed and on top of herself.       After doing so,

Grande felt a sharp pain and believed she had re-injured her

left shoulder, but an MRI revealed that she had injured her

cervical spine.   Grande underwent surgery and spent four months

recovering and rehabilitating before returning to work.         On her

first day back, however, she left the hospital after just four

hours because of residual pain.       Two weeks later, Grande

returned to full-time, light-duty work.

    In early July 2010, Grande’s doctor cleared her to resume

full-duty work.   The hospital informed Grande that, before

returning to full duty, she would have to undergo physical

testing.    Lori Briglio, the nurse case manager overseeing

Grande’s workers’ compensation claim, instructed Grande to

                                  5
report to Kinematic Consultants, Inc. (KCI) for a functional

capacity evaluation (FCE).

     Grande complied and underwent the examination, which tested

her ability to perform a variety of physical tasks, including

turning her head, demonstrating mobility in her limbs, lifting

objects from different heights, turning in different directions,

pushing and pulling, and carrying weights.     The report

documenting the evaluation (KCI Report) provided results in

several categories and compared Grande’s ability with her

employer’s requirements and with the standards set forth in the

Dictionary of Occupational Titles (D.O.T.).2    The Report

specified that Grande’s job demanded that she perform tasks

involving pushing, pulling, and lifting from waist to chest

frequently (34-66% of the time), but that she was able to

perform these functions only occasionally (1-33% of the time).

Accordingly, the Report recommended maximum loads for Grande to




2 The D.O.T. was “a catalogue of the occupational titles used in
the U.S. economy” and was intended to provide “reliable
descriptions of the type of work performed in each occupation.”
John C. Dubin, The Labor Market Side of Disability-Benefits
Policy and Law, 20 S. Cal. Rev. L. & Soc. Just. 1, 3 n.7 (2011)
(citation omitted). The U.S. Department of Labor published its
last updated edition of the D.O.T. standards in 1991. Ibid.
The D.O.T. was subsequently replaced with the Occupational
Information Network, also known as the O*NET database, last
revised in 2010. See About O*NET, O*NET Resource Center,
https://www.onetcenter.org/overview.html.

                                6
bear, including that Grande frequently lift no more than sixteen

pounds from waist to chest.

    The KCI Report also provided several conclusions about

Grande’s performance throughout the evaluation and her work

abilities.   The Report acknowledged that Grande had

“demonstrated maximum effort” throughout the evaluation and

confirmed that the documented results “are considered to be

valid.”   The Report noted that Grande’s results “may be

compatible with mild residual functional issues, as per

complaints and/or diagnosis,” but concluded that “[i]t is

improbable that this will significantly affect job performance

ability.”

    The Report also explained that Grande qualified to return

to work on “altered duty” based on the Report’s recommendations.

Due to Grande’s previous cervical surgery, the Report

recommended that Grande be “allowed changes in activities during

periods of prolonged or repetitive” neck movements.     The Report

also recommended that Grande “seek appropriate assistance with

heavier physical activities such as patient transfers, guarding

ambulatory patients or handling loads” greater than fifty

pounds.

    Overall, the KCI Report concluded that Grande

            demonstrate[d] ability for Medium category
            work (occasional lift and work up to 50 lbs.)
            with the above noted job movement demand

                                  7
          changes.    She demonstrate[d] ability for
          administrative/supervisory    duties,   verbal
          instruction    to    patients/care     givers,
          assisting   physicians   with    examinations,
          assisting with wound care/dressing changes,
          dispensation    of    medications,     pushing
          wheelchairs, assisting with moderate patient
          care, handling loads up to 50 lbs., etc.

     Shortly after the KCI Report was issued, Briglio contacted

KCI via e-mail to clarify several aspects of the Report,

including the portions of the job description that Grande could

not fulfill and the accommodations she would require.3     In an

addendum, KCI responded that Grande “demonstrates ability for

Medium category work (occasional lift and work up to 50 lbs.)

with noted job movement demand changes” and reiterated that

Grande could return to work with certain accommodations.

Nonetheless, the addendum concluded with the following

disclaimer:   “Please note that determination for final return to

work abilities for [Grande] is deferred to her treating

physician, in this case, Joel H. Spielman, M.D.”

     On July 21, 2010, following the functional capacity

evaluation, Dr. Spielman re-examined Grande.   He provided her

with a form that indicated she could return to work the next day

with restrictions, “per [the] FCE.”   Briglio, in turn, advised

the hospital that Dr. Spielman “agreed with the FCE report and




3 Briglio’s e-mail is not in the record before this Court, but
KCI’s response quotes from her e-mail.
                                 8
advised that [Grande] should have permanent restrictions of

lifting up to 50 lbs occasionally and that she should transfer

patient with assistance only.”

     The following day, Grande was summoned to a meeting with

her supervisors, at which she was fired.     Grande testified in

her deposition that she was told she had limitations that would

prevent her from doing her job.4

     After her termination, Grande again visited Dr. Spielman,

who issued another return-to-work form on August 25, 2010,

clearing Grande to return immediately to full-time, full-duty

work with no limitations.   Grande submitted the new work

authorization to Saint Clare’s, but Saint Clare’s refused to

rehire her.

                                 B.

     Nearly a year after her discharge, Grande filed a two-count

complaint against Saint Clare’s, alleging violations of N.J.S.A.

10:5-4.1, a subsection of the LAD.     The first count alleged that

Saint Clare’s unlawfully discriminated against Grande based on




4 In Grande’s complaint, she alleged that the hospital provided
her with a letter confirming her termination and stating that
the results of the functional capacity evaluation “indicated
specific restrictions” and the hospital was “unable to make
accommodations or find a comparable position that w[ould]
accommodate [Grande’s] medical requirements.” A copy of that
letter is not in the record before us.

                                   9
her disability, and the second count alleged unlawful

discrimination based on a perceived disability.5

     Saint Clare’s denied liability and, following discovery,

filed a motion for summary judgment.   In a certification

supporting that motion, Saint Clare’s human resources

supervisor, Jordan, asserted that “Grande was physically unable

to perform an essential function of her job” and expressed

“concern[] that Ms. Grande would be re-injured or that a patient

would be injured if [Grande] returned to full duty.”    Jordan

also certified that the decision to terminate Grande’s

employment was based on the findings in the KCI Report and the

July 2010 recommendation of Grande’s own physician.

     Grande filed a cross-motion for summary judgment.    She

conceded that she had periods of disability due to work-related

accidents but asserted that she surpassed the D.O.T. weight-

lifting requirements for nurses in her field, as reflected on

the KCI Report.   Grande also alleged that the weight-lifting

requirements specified in the KCI Report were “fictitious”

because the standards were “far higher” than those required by

the D.O.T. and “ha[d] not been shown to have ever been adopted




5 Earlier versions of the LAD used the word “handicap” rather
than “disability.” See Victor v. State, 203 N.J. 383, 398 n.3
(2010). We use the term “disability,” except where language is
quoted from an opinion or statute.


                                10
by Saint Clare’s.”   She also contended that the hospital

improperly interpreted the KCI Report’s recommended lifting

restrictions as actual limitations on her abilities,

highlighting that she had, in fact, lifted ninety-two pounds

from waist to shoulders during the evaluation, far above her

employer’s fifty-pound requirement.

    The trial court granted summary judgment in favor of Saint

Clare’s, finding that Grande did not establish a prima facie

case of discriminatory discharge because she “failed to

articulate whether she was performing (or was able to perform)

her job at a level that met the employer’s legitimate

expectations.”

    A divided Appellate Division panel reversed, vacating

summary judgment and remanding because the record contained

several material facts in dispute that could only be resolved by

a jury.   According to the majority, “the motion court

incorrectly resolved these materially disputed facts in favor of

[Saint Clare’s] and rejected or minimized the importance of

evidence a rational jury could find to support [Grande’s] case

of unlawful discrimination due to her perceived physical

disability.”   The majority explained:

          Here, plaintiff produced competent evidence,
          in the form of her treating physician’s
          certification, stating she had been medically
          cleared   to    return   to    work   without
          restrictions. Defendant has not rebutted that

                                11
         medical opinion with the opinion of another
         physician. Instead, defendant relies on the
         results of a “functional capacity evaluation
         [FCE]   test”   conducted   by   an  alleged
         independent company retained by defendant’s
         Department of Human Resources. KCI’s report
         contains facially equivocal findings with
         respect to plaintiff’s abilities to perform
         the core requirements of a nurse.

    The dissenting member of the panel emphasized that “[t]he

law should not place a hospital in a position of sacrificing

employee and patient safety in order to avoid potential

liability for discrimination” and that the hospital “could

sensibly rely on [Grande’s] actual work history [and history of

injuries] when it placed safety interests above [her] continued

employment.”   The dissent also found no genuine factual disputes

because “at the time the hospital made its decision to terminate

[Grande], her treating physician had stated she could return to

work, but only with lifting restrictions” -- a recommendation

which was modified “only after the hospital had already

terminated [Grande’s] employment.”

    Saint Clare’s filed this appeal as of right pursuant to

Rule 2:2-1(a)(2), limited to whether summary judgment was

appropriately awarded to the hospital by the trial court on the

facts in the record before it.    We granted amicus curiae status

to the New Jersey Association for Justice (NJAJ) and the

National Employment Lawyers Association of New Jersey (NELA-NJ).

                                 II.

                                 12
                                  A.

    Saint Clare’s argues that the LAD, its implementing

regulations, and New Jersey employment discrimination

jurisprudence authorize Grande’s termination.     Saint Clare’s

concedes that Grande is disabled under the LAD but agrees with

the trial court that she failed to establish a prima facie case

because she could not prove she was performing her job to the

hospital’s legitimate expectations.    Saint Clare’s highlights

that Grande was working light duty at the time of her discharge,

and both the KCI Report and Grande’s physician confirmed that

she could return to her regular duties only with lifting

restrictions.

    Even if Grande established a prima facie case, Saint

Clare’s maintains, the termination of her employment was legal.

The hospital cites various provisions of the LAD, including

N.J.S.A. 10:5-5(q), -2.1, -4.1, and -29.1, which provide that an

employer may terminate a disabled employee who, in the

reasonable opinion of the employer, is unable to perform

adequately her job duties.    The hospital also relies on N.J.A.C.

13:13-2.8, which allows an employer to terminate a disabled

employee if her continued employment “would be hazardous to the

safety or health of such individual, other employees, clients or

customers.”     Saint Clare’s maintains that its decision to

discharge Grande was appropriate because, unlike the employer’s

                                  13
improper reliance on a deficient medical report in Jansen v.

Food Circus Supermkts., Inc., 110 N.J. 363 (1988), Saint Clare’s

decision was based on objective evidence -- the functional

capacity evaluation -- as well as Grande’s own undisputed

history of injuries on the job.

                                  B.

    Grande contends that Saint Clare’s admission -- that it

fired her because of her perceived disability -- is direct

evidence of discrimination and, thus, Jansen does not require

her to prove a prima facie case.       Instead, Grande maintains that

the burden rests on Saint Clare’s to assert an affirmative

defense, which the hospital failed to do by competent medical or

scientific evidence.   Grande argues that because Saint Clare’s

failed to follow up with her treating doctor, there is no

competent evidence that she was a risk to herself or patients or

that she could not perform her job duties.

    Finally, Grande claims that certain factual issues remain

in dispute, including (1) the applicability of Saint Clare’s

purported lifting requirements to R.N.s in Grande’s position;

(2) the number of injuries she sustained; (3) whether she would

need assistance handling loads over fifty pounds; and (4) that

she is likely to suffer future injury.

                                  C.



                                  14
    Amici NJAJ and NELA-NJ agree with both parties that Jansen

provides the controlling test on disability discrimination under

the LAD.   NJAJ asserts that Saint Clare’s made the same error

here as the employer in Jansen -- it improperly assumed that

there was a probability of future injury without relying on an

expert report linking Grande’s perceived disability to a

probability of substantial harm.

    NELA-NJ adds that because Grande presented direct evidence

of discrimination, the only issue is “whether Saint Clare’s met

its burden of proving ‘it would have made the same decision even

in the absence of the impermissible consideration’” (quoting

Bergen Commercial Bank v. Sisler, 157 N.J. 188, 209 (1999)).

NELA-NJ also cautions that Saint Clare’s should not be given

“carte blanche” to decide what the essential functions of a

particular job are, as this would allow an employer to “invent

unrealistic job requirements for the sole purpose of eliminating

disabled people from consideration.”   It urges that the proper

approach is to allow a fact-finder to weigh the employer’s

statements, the written job description, the work experience of

current and former employees, and other factors, such as the

D.O.T. standards, to determine whether the employer’s criteria

are realistic or designed to discriminate against a disabled

person.

                               III.

                                15
    Turning to the law relevant to the parties’ arguments, the

LAD prohibits an employer from terminating a disabled employee

because of her disability unless the disability “reasonably

precludes the performance of the particular employment.”

N.J.S.A. 10:5-4.1.    The law governing an action “seeking redress

for an alleged violation of the LAD” depends upon whether the

employee “‘attempt[s] to prove employment discrimination by . .

. direct or circumstantial evidence.’”      Smith v. Millville

Rescue Squad, 225 N.J. 373, 394 (2016) (quoting Sisler, supra,

157 N.J. at 208).    Plaintiffs are permitted to prove their claim

using either or both methods.    Sisler, supra, 157 N.J. at 208.

                                 A.

    To prove a discriminatory discharge case by direct

evidence, a plaintiff “must produce evidence ‘that an employer

placed substantial reliance on a proscribed discriminatory

factor in making its decision’” to terminate the employee.

Smith, supra, 225 N.J. at 394 (quoting A.D.P. v. ExxonMobil

Research & Eng’g Co., 428 N.J. Super. 518, 533 (App. Div.

2012)).   “The evidence produced must, if true, demonstrate not

only a hostility toward members of the employee’s class, but

also a direct causal connection between that hostility and the

challenged employment decision.”      Sisler, supra, 157 N.J. at 208

(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.



                                 16
Ct. 1775, 1804, 104 L. Ed. 2d 268, 305 (1989) (O’Connor, J.,

concurring)).

    “After the plaintiff sets forth ‘direct evidence of

discriminatory animus, the employer must then produce evidence

sufficient to show that it would have made the same decision if

illegal bias had played no role in the employment decision.’”

Smith, supra, 225 N.J. at 395 (quoting Fleming v. Corr.

Healthcare Sols., 164 N.J. 90, 100 (2000)).

                               B.

    If direct evidence of discrimination is unavailable, a

plaintiff may prove her claim by circumstantial evidence.     To

evaluate circumstantial evidence cases, this Court has adopted

the three-step burden-shifting test articulated by the United

States Supreme Court in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).   Andersen v.

Exxon Co., U.S.A., 89 N.J. 483, 492-93 (1982).   Nevertheless,

this Court has modified the McDonnell Douglas framework in

evaluating disability discrimination claims.   See id. at 498

(noting that, in “physical handicap” cases, “it will not be

necessary to go through all of the strict steps of the McDonnell

Douglas formula”).

                               1.

    The first step of our modified framework requires that a

plaintiff establish a prima facie case.   Jansen, supra, 110 N.J.

                               17
at 382.   When a plaintiff alleges she was fired discriminatorily

based on a disability, she must prove by a preponderance of the

evidence that:    (1) she is disabled within the meaning of the

LAD; (2) she “was performing [her] job at a level that met [her]

employer’s legitimate expectations”; (3) she was discharged; and

(4) the employer sought someone else to perform the same work

after she left.   Ibid. (quoting Clowes v. Terminix Int’l, Inc.,

109 N.J. 575, 597 (1988)).

    As to the first prong of the prima facie case, an employee

who is perceived to have a disability is protected just as

someone who actually has a disability.      Victor v. State, 203

N.J. 383, 410 (2010); Rogers v. Campbell Foundry, Co., 185 N.J.

Super. 109, 112-13 (App. Div.), certif. denied, 91 N.J. 529

(1982).

    The second prong –- whether the employee is able to perform

at a level that meets “legitimate or reasonable expectations” --

is to be evaluated by an objective standard.      Viscik v. Fowler

Equip. Co., 173 N.J. 1, 21 (2002).      Thus, deficiencies in an

employee’s performance are reserved for consideration at later

stages in the analysis.    Ibid.   For the second prong, “[a]ll

that is necessary is that the plaintiff produce evidence showing

that she was actually performing the job prior to termination.”

Zive v. Stanley Roberts, Inc., 182 N.J. 436, 454 (2005).



                                   18
    The fourth prong requires proof that the “employer sought a

replacement with qualifications similar to [the employee’s] own,

thus demonstrating a continued need for the same services and

skills.”   Sisler, supra, 157 N.J. at 218-19 (emphasis omitted)

(quoting Erickson v. Marsh & McLennan Co., 117 N.J. 539, 553

(1990)).

                                2.

    If a plaintiff successfully establishes a prima facie case,

“a presumption arises that the employer unlawfully discriminated

against the plaintiff.”   Clowes, supra, 109 N.J. at 596.   The

analysis then proceeds to the second step of the test, where

“the employer’s burden varies depending on whether the employer

seeks to establish the reasonableness of the otherwise

discriminatory act or advances a non-discriminatory reason for

the employee’s discharge.”   Jansen, supra, 110 N.J. at 382.

    If the employer claims that it has a non-discriminatory

reason for the discharge, “the burden of production -- not the

burden of proof or persuasion -- shifts to the employer.”    Ibid.

The employee may respond by proving by a preponderance of the

evidence that the reason proffered by the employer “was not the

true reason for the employment decision but was merely a pretext

for discrimination.”   Id. at 382-83 (quoting Andersen, supra, 89

N.J. at 493).   As with the traditional McDonnell Douglas

framework, the burden of proving that the employer intentionally

                                19
discriminated remains at all times with the employee.      Id. at

383.

       If, in the second step, “the employer defends by asserting

that it reasonably concluded that the handicap prevented the

employee from working,” the employer bears the burden of proof

as to its defense, and not a mere burden of production.       Id. at

383; see N.J.A.C. 13:13-2.8(a)(3); see also N.J.S.A. 10:5-29.1

(stating that “[u]nless it can be clearly shown that a person’s

disability would prevent [her] from performing a particular job,

it is an unlawful employment practice to deny an otherwise

qualified person with a disability the opportunity to . . .

maintain employment”).    To carry its burden, the employer must

prove “it . . . reasonably arrived at its opinion that the

[employee] is unqualified for the job.”    Andersen, supra, 89

N.J. at 496.    The employer must produce evidence that its

decision was based on “an objective standard supported by

factual evidence” and not on general assumptions about the

employee’s disability.    N.J.A.C. 13:13-2.8(a)(3).

       One possible basis for the employer’s affirmative defense

is safety.   Recognizing the importance of safety in the

workplace, the LAD regulations and this Court have made clear

that an employer may terminate a disabled employee where

continued employment “would be hazardous to the safety or health

of [the employee], other employees, clients or customers.”

                                 20
N.J.A.C. 13:13-2.8(a)(2); Jansen, supra, 110 N.J. at 374.     “When

asserting [that] safety defense, the employer must establish

with a reasonable degree of certainty that it reasonably arrived

at the opinion that the employee’s handicap presented a

materially enhanced risk of substantial harm in the workplace.”

Jansen, supra, 110 N.J. at 383.    Importantly, “[a]n employer may

not base a decision to discharge an employee for safety reasons

on subjective evaluations or conclusory medical reports.”

Greenwood v. State Police Training Ctr., 127 N.J. 500, 511

(1992).

                                  C.

    In addition to the above analysis, the LAD regulations

require an evaluation of whether a reasonable accommodation

would have allowed the disabled employee to perform her job.

The Administrative Code mandates that an employer “consider the

possibility of reasonable accommodation before firing, demoting

or refusing to hire or promote a person with a disability on the

grounds that his or her disability precludes job performance.”

N.J.A.C. 13:13-2.5(b)(2); see also Viscik, supra, 173 N.J. at

19-20 (noting that reasonable accommodation arises as issue in

disability discrimination cases in two instances:    where

plaintiff affirmatively pleads failure to accommodate and where

employer defends on grounds that employee was terminated due to

inability to perform job).

                                  21
    We have yet to determine, outside of a failure-to-

accommodate claim, at what point in the McDonnell Douglas

analysis a court is to consider the availability of a reasonable

accommodation.   In discriminatory discharge cases, the Appellate

Division has addressed reasonable accommodations in its analysis

of the second prong of a plaintiff’s prima facie case, where the

employee must produce evidence that she was performing her job

to her employer’s expectations.    See, e.g., Svarnas v. AT&T

Commc’ns, 326 N.J. Super. 59, 74-81 (App. Div. 1999) (discussing

whether reasonable accommodation would have allowed chronically

absent employee to perform essential job requirements).     That

approach is consistent with the evaluation of discriminatory

discharge claims under the Americans with Disabilities Act

(ADA), 42 U.S.C.A. §§ 12101 to 12213.    See, e.g., Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)

(plaintiff alleging discriminatory discharge under ADA must

establish, as second prong of prima facie case, that she “is

otherwise qualified to perform the essential functions of the

job, with or without reasonable accommodations by the employer”

(quoting Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d Cir.

1998))).

    In assessing “allegations of unlawful discrimination, this

Court has looked to federal law as a key source of interpretive

authority.”   Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97

                                  22
(1990).   Moreover, our courts have evaluated an employer’s

obligation to reasonably accommodate an employee’s disability

under the LAD in accordance with the ADA.   Royster v. N.J. State

Police, 227 N.J. 482, 499 (2017).

     Accordingly, we hold that the reasonable-accommodation

consideration belongs in the second-prong analysis.    A plaintiff

may satisfy the second prong of the prima facie case for an

allegation of discriminatory discharge based on a disability by

putting forth evidence either that she was actually performing

her job or was able, with or without reasonable accommodation,

to perform her job to her employer’s legitimate expectations.

     An employer may rebut a plaintiff’s reasonable-

accommodation showing by providing evidence that the proposed

accommodation is unreasonable.   See N.J.A.C. 13:13-2.5(b); -

2.5(b)(3)(i) to (iv).6   As we recognized in Andersen, supra,


6 In Raspa v. Office of Sheriff of Cty. of Gloucester, the
plaintiff conceded that his medical limitation -- degenerating
eyesight -- rendered him “unable to perform any of the essential
functions” of his position as a corrections officer, and the
evidence showed “no objectively viable and reasonable
accommodation would ever make” the plaintiff qualified to
perform those essential functions. 191 N.J. 323, 328, 338
(2007). This Court held that “an employee must possess the bona
fide occupational qualifications for the job position that
employee seeks to occupy in order to trigger an employer’s
obligation to reasonably accommodate the employee.” Id. at 327.
The Court also held that “the LAD does not require that an
employer create an indefinite light duty position for a
permanently disabled employee if the employee’s disability,
absent a reasonable accommodation, renders him otherwise
unqualified for a full-time, full-duty position.” Id. at 340.
                                 23
where “the job qualifications [are] virtually a mirror

reflection of the physical boundaries of the [employee’s]

handicap,” proof by the employee that she could perform the job

with or without a reasonable accommodation is “tantamount to

proving” that the disability does not hinder the employee’s job

performance.   89 N.J. at 499 n.5.

                                 IV.

    Before turning to the proofs necessary to establish

Grande’s LAD claim, we must first determine whether this is a

case of direct or circumstantial evidence.      We note that the

Appellate Division did not directly address this question, but

the majority opinion references Jansen, indicating that, like

the trial court, it was applying the McDonnell Douglas

circumstantial evidence framework to Grande’s claim.

    The parties contend that this is a direct evidence case

because Saint Clare’s admits that Grande’s disability motivated

its decision to terminate her.   We disagree.    Saint Clare’s

concedes that Grande is disabled under the LAD and admits that

it fired her because her perceived disability precluded her from




We conclude that Raspa stands for the proposition that an
employer is not required to accommodate a disabled employee by
creating a permanent, light-duty position. In a wrongful
discharge case, an employee may nonetheless show in her prima
facie case that an accommodation other than the creation of a
new, light-duty position would allow her to perform her job to
her employer’s legitimate expectations.
                                 24
performing as a R.N.     Nonetheless, Grande has produced no

evidence of discriminatory animus toward disabled employees.

She alleges that the lifting standards identified in the KCI

Report and the 2008 Job Analysis do not reflect the actual

requirements of her job.    Grande has not shown, however, that

those requirements apply only to R.N.s with disabilities or are

otherwise entirely unrelated to the performance of a R.N.’s

duties.     See A.D.P., supra, 428 N.J. Super. at 534-35 (finding

direct evidence of discrimination when employer’s policy applied

only to employees identified as alcoholics and employee’s

discharge, based on noncompliance with policy, was unrelated to

job performance).

    We acknowledge that, in LAD claims alleging discrimination

based on other protected classes, such as race, sex, national

origin, or marital status, an employer’s admission that a

protected characteristic motivated its employment decision would

be direct evidence of discrimination.     See, e.g., Smith, supra,

225 N.J. at 397-99 (finding direct evidence of marital status

discrimination when employer stated that employee would not have

been fired if he had reconciled with his wife).    However, the

LAD provides that an employer may lawfully terminate a disabled

employee if the disability precludes job performance.     N.J.S.A.

10:5-4.1.    Therefore, more than Saint Clare’s admission is

needed to establish direct evidence of discrimination here;

                                  25
evidence of animus or hostility toward the disabled must also be

produced.   Because Grande fails to show a “hostility toward

members of [her] class,” Sisler, supra, 157 N.J. at 208, we

agree with the Appellate Division that this case must be

resolved by applying the McDonnell Douglas circumstantial

evidence framework.

                                V.

    Having concluded that this is a circumstantial evidence

case, we apply the McDonnell Douglas framework to determine the

proofs necessary to establish Grande’s LAD claim and whether

summary judgment was appropriately granted in Saint Clare’s

favor.   We review Saint Clare’s motion for summary judgment

using the same standard applied by the trial court -- whether,

after reviewing “the competent evidential materials submitted by

the parties” in the light most favorable to Grande, “there are

genuine issues of material fact and, if not, whether the moving

party is entitled to summary judgment as a matter of law.”

Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).      An

issue of material fact is “genuine only if, considering the

burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences

therefrom favoring the non-moving party, would require



                                26
submission of the issue to the trier of fact.”   Ibid. (quoting

R. 4:46-2(c)).

                                A.

    We first consider Saint Clare’s argument that it was

entitled to summary judgment because Grande failed to state a

prima facie case.   Once again, under our modified McDonnell

Douglas analysis, Grande must establish a prima facie case by

putting forth evidence that:   (1) she is disabled within the

meaning of the LAD; (2) she was actually performing her job or

was able, with or without reasonable accommodation, to perform

her job at a level that met Saint Clare’s legitimate

expectations; (3) she was discharged; and (4) Saint Clare’s

sought someone else to perform the same work after she left.

See Jansen, supra, 110 N.J. at 382.

    It is undisputed that Saint Clare’s perceived Grande as

disabled and terminated her from her R.N. position.    Further,

neither party claims that whether Saint Clare’s filled or

eliminated Grande’s nursing position is pertinent to the summary

judgment motion under consideration.   Therefore, only the second

prong remains at issue.

    Saint Clare’s argues that Grande failed to satisfy that

second prong because her lengthy absences are proof that she was

not performing her job.   Cf. Svarnas, supra, 326 N.J. Super. at

77 (stating that employer is not required to accommodate

                                27
“chronic and excessive absenteeism”).     Although Grande worked

for Saint Clare’s for ten years and was never warned that her

job was at risk, she was absent for over twelve months due to

her injuries, worked about two months on light-duty assignments,

and was on light duty, concededly at the hospital’s request, at

the time she was fired.

    Grande argues that she made a showing sufficient to

withstand summary judgment under the second prong by putting

forth evidence that she was employed for ten years and her

performance was “exemplary.”     She relies on Zive, supra, where

this Court stated that the “slight burden of the second prong is

satisfied” when a plaintiff “adduces evidence that [s]he has, in

fact, performed in the position up to the time of termination.”

182 N.J. at 455.   Grande further claims that, at the time of her

termination, she was able to resume full-time, full-duty work,

and her periods of absence, in light of her ten-year history

with the hospital, did not keep her from satisfying her prima

facie case.

    In Zive, the employee suffered a stroke, after which he did

not take time off from work but instead worked from home for

three months while recovering.    Id. at 442-43.   When the

employee wished to return to work at the company, he was told

that his services would no longer be required.     Id. at 443.   The

employer defended its decision to terminate the employee by

                                  28
claiming that he failed to meet an unusually high sales goal.

Id. at 450-51.   This Court was not persuaded, reasoning that the

employee had extensive experience in his field, had worked for

his employer for eight years, had been actively engaged in

management and administration, and had never been told that his

job was at stake.   Id. at 456.    Importantly, Zive did not

address the employer’s obligation to consider reasonable

accommodations prior to terminating a disabled employee, as

required by the LAD regulations.       See N.J.A.C. 13:13-2.5(b)(2).

Zive, thus, did not involve an employee’s extended periods of

absence from work and did not address the required reasonable-

accommodation consideration.

    We nevertheless agree with Grande that the modest burden to

withstand summary judgment as to the second prong of the prima

facie case has been met.   An issue of fact exists as to whether

Grande’s periods of absence from work were sufficiently “chronic

and excessive,” Svarnas, supra, 326 N.J. Super. at 77, to

preclude her from demonstrating that she was actually performing

her job at the time she was terminated.       While this factual

dispute is material to Grande’s prima facie case, we express no

opinion on the issue.

    We additionally note that, as the parties acknowledged in

oral argument, the record is rather undeveloped as to any

reasonable accommodation that would allow Grande to perform the

                                  29
essential functions of her job despite her disability.    While

the record is silent as to specifics, it does indicate that

Saint Clare’s considered accommodations that could potentially

allow Grande to continue her employment, but that no reasonable

accommodation existed.    Grande maintains that she needed no

accommodation.   Therefore, we see no reason to allow additional

discovery to develop the record in this regard, and we remand

for trial on the record as it stands.

                                 B.

    Having concluded that factual disputes exist as to Grande’s

prima facie case, we now turn to Saint Clare’s alternate claim

that, even if Grande has established a prima facie case, Saint

Clare’s is entitled to summary judgment on the basis of the

defenses it asserted under the second McDonnell Douglas step.

    Saint Clare’s admits that it fired Grande because of her

disability but claims that the firing was justified because

Grande was both unable to perform the essential functions of her

job and unable to do so without posing a risk of harm to herself

or others.    The hospital bears the burden of proof as to its

defenses.    Jansen, supra, 110 N.J. at 383.

                                 1.

    To prove its claim that Grande’s perceived disability

precluded her from performing as a R.N., Saint Clare’s must show

that “it reasonably arrived at [its] opinion.”    Andersen, supra,

                                 30
89 N.J. at 499-500.    That is, Saint Clare’s must demonstrate

that its opinion is “based upon an objective standard supported

by factual evidence”; general assumptions about Grande’s

disability are insufficient.     N.J.A.C. 13:13-2.8(a)(1).

       Saint Clare’s maintains that it met this burden by relying

on the KCI Report, which is more comprehensive than the cursory

medical examination we found insufficient in Andersen, supra, 89

N.J. at 500.     In Andersen, an applicant sought a position as a

truck driver and underwent a “preplacement physical

examination.”    Id. at 489.   The applicant disclosed to the

examining doctor that he had had back surgery thirteen years

prior.   Ibid.   The doctor performed a cursory physical

evaluation and asked the applicant only to “raise his hands and

bend over and touch his toes.”     Ibid.   The doctor then concluded

that the applicant was unfit for the job because “people with

back problems would not be hired.”     Ibid.   This Court held that

such a deficient medical report was an insufficient basis on

which the employer could reasonably arrive at its opinion that

the applicant’s disability precluded job performance.        Id. at

500.

       While we acknowledge that the KCI Report here is more than

a cursory evaluation, we find it presents material issues of

fact that could not be resolved on the record before the trial

court.    First, there is a dispute as to whether the lifting

                                  31
standards identified by the KCI Report as Saint Clare’s

requirements are actually the standards applicable to Grande’s

position.   Saint Clare’s 2008 Job Analysis indicates that R.N.s

are required, as essential functions of their job, to lift fifty

pounds from waist to chest frequently (34% to 66% of the day)

and several other loads occasionally (1% to 33% of the day),

including twenty-five pounds from floor to waist, ten pounds

from chest to overhead, twenty pounds in a two-hand carry, and

ten pounds in a one-hand carry.     The Job Analysis does not

identify any activity that is performed at a frequency greater

than 66% of the day.

    The KCI Report, on the other hand, lists the following as

the hospital’s requirements:    constantly (67% to 100% of the

day) lift twenty pounds, frequently lift fifty pounds, and

occasionally lift 100 pounds.    The addendum to the KCI Report

indicates that the Report’s standards were based on a job

description provided by the hospital but does not confirm

whether that job description is the 2008 Job Analysis.      The

record is also silent as to why the KCI standards differ from

those listed on the Job Analysis.      Grande contends that the

standards on neither the KCI Report nor the Job Analysis reflect

what she actually does in her position.      Thus, from the record

before us, we cannot discern which tasks were essential to

Grande’s job.

                                  32
       Second, there is a dispute as to whether the KCI Report

conclusively establishes that Grande is unable to perform her

job.    The Report indicates that, in some categories, Grande’s

ability was below the hospital’s standards.     The Report also

states, however, that while the results “may be compatible with

mild residual functional issues,” “[i]t is improbable that this

will significantly affect job performance ability.”     The

addendum to the report makes clear that “determination for final

return to work abilities . . . is deferred to [Grande’s]

treating physician.”     Dr. Spielman had cleared Grande to return

to full-time, full-duty work on July 8, 2010, four days before

the FCE was performed.     Although Dr. Spielman subsequently

restricted Grande’s work pursuant to the FCE, Grande disputes

that such restrictions were permanent.7    The hospital claims that

Dr. Spielman recommended permanent lifting restrictions; Grande

alleges Dr. Spielman told her she could resume her regular

duties; and the KCI Report does not indicate whether its

recommendations were permanent or temporary.




7 Because the August 2010 return-to-work certificate issued by
Grande’s doctor clearing her to return to full-time, full-duty
work with no limitations postdated her discharge by Saint
Clare’s, it is not relevant to our determination.

                                  33
    These factual disputes are material to the issue of whether

Grande’s disability precluded her from performing the essential

functions of her job.

                                2.

    Saint Clare’s also maintains that Grande’s history of

injuring herself on the job sufficiently proved her inability to

perform her job without posing a risk of harm to herself or

others.

    To assert this defense, Saint Clare’s “must establish with

a reasonable degree of certainty that it reasonably arrived at

the opinion that [Grande’s] handicap presented a materially

enhanced risk of substantial harm in the workplace.”   Jansen,

supra, 110 N.J. at 383.   The New Jersey Administrative Code

explains the employer’s burden as follows:

          Refusal to select a person with a disability
          may be lawful where it can be demonstrated
          that the employment of that individual in a
          particular position would be hazardous to the
          safety or health of such individual, other
          employees, clients or customers where hazard
          cannot be eliminated or reduced by reasonable
          accommodation. Such a decision must be based
          upon an objective standard supported by
          factual or scientifically validated evidence,
          rather   than   on   the  basis   of   general
          assumptions that a particular disability would
          create a hazard to the safety or health of
          such individual, other employees, clients or
          customers. A “hazard” to the person with a
          disability is a materially enhanced risk of
          serious harm.

          [N.J.A.C. 13:13-2.8(a)(2) (emphases added).]

                                34
Thus, the Administrative Code requires that an employer base its

conclusion to terminate an employee on “factual or

scientifically validated evidence.”   Ibid.

    Here, viewing the facts in the light most favorable to

Grande, she sustained at least three disabling injuries for

which she was required to be absent from work.   After each of

the first two injuries, however, she was cleared to return to

work and did so.   After the final injury, Grande’s physician

also cleared her to return to regular duty prior to her

termination.

    There is no indication in the record that plaintiff caused

injury to the patients in the course of incurring her own

injuries.   Moreover, the KCI report only recommends that Grande

be assisted in attempting to lift more than fifty pounds, even

though she was able to lift much heavier loads during testing.

The Report says nothing about Grande’s ability to otherwise

perform her job without causing injury to patients or to

herself.

    Furthermore, there is no expert testimony that Grande’s

perceived susceptibility to injury posed a “materially enhanced

risk of serious harm” to herself or her patients.    N.J.A.C.

13:13-2.8(a)(2); accord Jansen, supra, 110 N.J. at 374-75.      We

conclude, therefore, that the evidence that Grande presented a


                                35
risk of injury to herself or patients is inadequate to resolve

conclusively this material issue.

    In affirming the requirements set forth in Jansen, we

remain cognizant of the need for safe work environments.   Our

holding today is not intended to limit an employer’s ability to

promulgate safety standards or to require of its employees the

physical ability to safely perform their duties.   Nonetheless,

when terminating a disabled employee because of an inability to

abide by such standards, an employer must prove that its

standards relate to the employee’s duties and that no reasonable

accommodation exists that will allow the employee to continue in

her position.

                               VI.

    For the reasons set forth above, the judgment of the

Appellate Division is affirmed as modified, and the matter is

remanded to the trial court for further proceedings.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion. JUSTICE LaVECCHIA filed a separate, CONCURRING
opinion.




                               36
                                           SUPREME COURT OF NEW JERSEY
                                             A-67 September Term 2015
                                                      076606

MARYANNE GRANDE, R.N.,

    Plaintiff-Respondent,

         v.

SAINT CLARE’S HEALTH SYSTEM,

    Defendant-Appellant.

    JUSTICE LaVECCHIA concurring.

    I concur in the majority opinion remanding this disability

discrimination matter for trial.       I agree that plaintiff has met

her pretrial obligation to present a prima facie case of

unlawful discrimination under our Law Against Discrimination

(LAD), N.J.S.A. 10:5-1 to -42, entitling her to a determination

by a jury of the material factual disputes between the parties.

However, I write separately to address two matters.

    First, I write to underscore that, in order for a

disability discrimination claim to survive a summary judgment

motion, the showing required of a terminated plaintiff regarding

her ability to perform the essential functions of her job is a

modest one.   Although this matter involves a number of disputes

as to plaintiff’s job requirements and defendant’s justification

for terminating her, such disputes do not deprive plaintiff of

her opportunity to have the matter heard by a jury.       And,


                                   1
plaintiff’s pretrial showing certainly should not require her to

resolve issues that more properly belong in the employer’s

required presentation.    Second, I write to observe that this

matter is a missed opportunity to reassess the convoluted

frameworks we have adopted to evaluate LAD disability

discrimination cases.    To the extent those frameworks apply, I

also agree with the parties that this matter would be better and

more effectively analyzed as a direct evidence case.

                             I.

     All parties agree that Jansen v. Food Circus Supermarkets,

Inc., 110 N.J. 363 (1988) -- our preeminent decision on the

subject of disability discrimination -- provides the starting

point for analysis in this matter.    In effectuating our LAD’s

charge regarding disability discrimination, this Court in

Jansen, supra, initially turned to the McDonnell Douglas1 test,

as it had for other claims involving allegations of

“discrimination in hiring because of race, creed, color,

national origin, ancestry, age, marital status, or sex.”     110

N.J. at 380.   After reciting the McDonnell Douglas framework,

the Jansen Court observed that in the disability discrimination

context, the employer often admits that it subjected an employee

to disparate treatment because of a disability, “but claims that


1  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973).
                                  2
[the treatment] was justified.”       Id. at 381 (quoting Andersen v.

Exxon Co., 89 N.J. 483, 498 (1982)).

     The Court stated that when the employer makes such an

admission, “fairness suggests that the employer bear the burden

of persuasion that ‘the nature and extent of the handicap

reasonably precludes the performance of the particular

employment.’”   Ibid. (quoting N.J.S.A. 10:5-4.1 (1988)).2

Accordingly, the Court placed that burden on the employer

because it recognized that the employer “is in a better position

to prove that it reasonably arrived at the conclusion that the

handicap precluded employment.”       Ibid.   That burden-of-proof

obligation was viewed as consistent with the statutory direction

in N.J.S.A. 10:5-4.1 and the LAD’s implementing regulation,

N.J.A.C. 13:13-2.8.

     The Court recognized both the strong public policy

underlying the LAD’s protection of disabled employees and the

countervailing interest of employers in the ability to fire or

refuse to hire employees who cannot safely perform a job.

Jansen, supra, 110 N.J. at 374.       To balance those interests in

Jansen -- a case involving an employee with epilepsy -- the




2  Jansen quotes a prior version of the statute, which has been
amended to refer to whether “the nature and extent of the
disability reasonably precludes the performance of the
particular employment.” L. 2003, c. 180 (codified at N.J.S.A.
10:5-4.1).
                                  3
Court stated that “[t]he appropriate test is not whether the

employee suffers from epilepsy or whether he or she may

experience a seizure on the job, but whether the continued

employment of the employee in his or her present position poses

a reasonable probability of substantial harm.”   Id. at 374-75.

The Court determined that the trial and appellate courts had

erred by equating the future probability of a seizure on the job

with the future probability of injury, when Jansen’s employer

had made no showing that Jansen’s seizures posed a risk of

injury to himself or others.   Id. at 377 (“The assumption that

every epileptic who suffers a seizure is a danger . . . reflects

the prejudice that the [LAD] seeks to prevent.”).   The Court

explained that the employer had not “reasonably arrived at” its

decision to fire Jansen because the employer relied on a

deficient medical report, which did not distinguish between the

probability of future seizures and actual risk of harm, and did

not consider Jansen’s work history or his own doctors’ reports.

Id. at 379-80.

    The Jansen Court reiterated that, as part of a prima facie

case, a plaintiff must establish: (1) that he was disabled

within the meaning of the LAD, “(2) that he was performing his

job at a level that met his employer’s legitimate expectations,

(3) that he nevertheless was fired, and (4) that the [employer]

sought someone to perform the same work after he left.”    Id. at

                                4
382 (alteration in original) (quoting Clowes v. Terminix Int’l,

Inc., 109 N.J. 575, 597 (1988)).       However, the Jansen Court did

not dwell on whether Jansen had presented a prima facie case

because the issue in dispute focused on the affirmative safety

defense advanced by Jansen’s employer.3      The Court held that

where an employer defends its disparate treatment of a disabled

employee by raising a safety defense, the employer bears the

burden of proof to show that its conclusion that the employee

could not perform the job was a reasonable one.       Id. at 383.

     Zive v. Stanley Roberts, Inc., 182 N.J. 436, 451-56 (2005),

focused on the second prong of McDonnell Douglas and assessed

the quantum of proof required to be produced by a plaintiff when

presenting a prima facie case of disability discrimination.         In

Zive, we expressly kept the plaintiff’s burden as to the second

prong “slight” when a plaintiff had been performing the job

prior to being terminated based on perceived disability.       182




3  The Jansen Court briefly referred to the second prong of a
prima facie case, respecting an employee’s ability to perform a
job, noting that “[i]n some cases, . . . the handicap is so
directly related to the job qualifications that the applicant’s
proof of his or her physical ability to do the job is tantamount
to proof that the handicap would not hinder his or her
performance.” Id. at 382. However, the Court also noted that
the employer is in the best position to put forward facts
relating to the qualifications for a position with respect to a
safety defense, id. at 381, suggesting that, should the nexus
between a disability and job qualifications be in dispute, the
employer would bear the burden of persuading the factfinder of
the necessity of imposing those qualifications.
                                   5
N.J. at 455.   We instructed courts not to consider the

employer’s evidence disputing job performance related to the

essentials of one’s job in the context of the plaintiff’s

pretrial prima facie case.     Ibid.

    The majority recognizes that there are disputed facts about

plaintiff’s essential job functions and whether she can perform

them.   I agree that those issues must be resolved by a jury, and

therefore I concur in this judgment.     That said, Jansen and Zive

provide all the guidance necessary to understand the standards

governing plaintiff’s pretrial prima facie case, and plaintiff

has met those standards.     The majority differentiates this case

from Zive, asserting that Zive did not address reasonable

accommodation or an employee’s extended absence from work prior

to seeking return from a workers’ compensation leave due to a

work injury.

    In my view, issues of reasonable accommodation or

absenteeism due to disability have no business being compressed

into plaintiff’s pretrial prima facie case.     Because plaintiff

did not plead a failure to accommodate claim, reasonable

accommodation was not at issue as part of plaintiff’s pretrial

case.   As for absenteeism, Saint Clare’s did not rely on

plaintiff’s absences as a reason for terminating her employment.

Courts faced with disability discrimination claims should remain

focused pretrial on the key question of whether there are

                                   6
triable issues of fact on which a jury could base a finding that

an employer has unlawfully discriminated against an employee.

                             II.

    Jansen insightfully instructed that if an employer wants to

assert safety as its justification for terminating an employee,

it must bear the burden of persuasion on that point.   Although

the context is different, the facts of this case are similar to

the facts of Jansen.    Like in Jansen, in this case an employer

has terminated an employee, admittedly on the basis of a

physical disability.   This case is also like Jansen in that

there has been no expert report produced for trial that clearly

addresses the probability of future harm due to the asserted

disability.   Under Jansen, supra, the question to be addressed

is whether Saint Clare’s has established “with a reasonable

degree of certainty that it reasonably arrived at the opinion

that the employee’s handicap presented a materially enhanced

risk of substantial harm in the workplace.”   110 N.J. at 383.

    As in Jansen, the elements of an employee’s pretrial prima

facie case to prove discriminatory intent are not the center of

this dispute because Saint Clare’s has admitted that it

terminated Grande based on her disability.    And, under Zive,

plaintiff has adduced some proof that she was capable of

performing her job.    While Saint Clare’s asserts that lifting is

an essential function of plaintiff’s job as a registered nurse

                                   7
and that plaintiff did not demonstrate during her KCI

examination that she met the employer’s lifting standards, those

facts are heavily disputed.     Consistent with the regulations

implementing the LAD, Saint Clare’s bears the ultimate burden of

demonstrating that “as a result of [plaintiff’s] disability,

[she] cannot perform the essential functions of the job even

with reasonable accommodation.”       N.J.A.C. 13:13-2.8; see also

N.J.S.A. 10:5-29.1 (requiring clear showing of employee’s

inability to perform job).

    To the extent that Saint Clare’s is asserting a safety

defense, it also bears the burden of proof on that defense.

Plaintiff will be required to rebut Saint Clare’s proofs on that

defense before the factfinder, once the groundwork for a safety

defense has been established.    She has already proffered

evidence of her differing view of the facts about the job and

her ability to perform it.

    So, in this case, there are material factual disputes

regarding whether plaintiff has demonstrated her objective

ability to do the job -- with or without reasonable

accommodation, as the majority adds -- according to legitimate

job standards.   Those factual issues to be resolved are distinct

from the employer’s claimed safety concerns.      Still, N.J.S.A.

10:5-29.1 requires that “[u]nless it can be clearly shown that a

person’s disability would prevent [her] from performing a

                                  8
particular job, it is an unlawful employment practice to deny to

an otherwise qualified person with a disability the opportunity

to . . . maintain employment” (emphasis added).   Thus, at trial,

Saint Clare’s must bear the burden as to whether its conclusion

that plaintiff could not perform her job was reasonably arrived

at, in addition to the burden as to its safety defense.

     In other words, whether plaintiff’s termination was

“justified by lawful considerations” remains to be decided at

trial.   There has been no concession here by plaintiff that she

cannot do the job.   There is a dispute over the “essential

functions” of the job.4   There is a factual dispute over whether

the KCI Report contains sufficient proof that plaintiff cannot

perform essential lifting duties of the job, even assuming the

asserted essential lifting requirements are legitimate.    And,

the factual questions about the disputed standards are




4  Grande’s job description does not mention lifting in the
summary. The list of essential requirements for the job
contains “Lift and Carry Tasks,” which list the amount of weight
a nurse must be required to lift or carry. There is no mention
of frequency and no mention that heavy lifting must be done
regularly. The U.S. Department of Labor’s Dictionary of
Occupational Titles (D.O.T.), to which the KCI Report refers,
lists nursing as a “medium” strength demand job, which requires
the employee to occasionally lift fifty pounds and frequently
lift twenty pounds. A point of disagreement between the parties
arises from comparing Grande’s actual job description and the
D.O.T. standards for nursing (which both indicate that the
strength demands are “medium”) with the job standards that Saint
Clare’s told KCI to use for the FCE, the validity of which is
challenged.
                                 9
complicated by the apparent lack of historical evidence that

this employer subjected its nursing force to strength testing

either at the time of hiring or as a condition of continued

employment.   The standards, which plaintiff claims are newly

asserted, are being applied to her after she is returning to

work from a workers’ compensation leave.   Finally, the employer

may still prove its safety defense.

    To the extent that the majority mentions absenteeism as an

issue to be explored at trial, I must point out that absenteeism

was not relied upon as a reason for plaintiff’s termination and

should not become a new reason to justify the adverse job

action, particularly when the employee’s absences were all due

to legitimate job injuries for which the employer bears some

responsibility under the social compact established under

workers’ compensation law.   To use plaintiff’s prior injuries as

a rationale to terminate her, or to use them as a predictor of

future inability to do the job, risks contravention of this

state’s public policy.   And, as the Appellate Division majority

underscored, probability, not mere possibility, is the test for

reasonably predicting future safety issues.

                             III.

    In addition to the points discussed above, I am compelled

to point out the following with respect to the future direction

of this important area of law.

                                    10
                           A.

    First, numerous courts have been reflecting on the

development of discrimination litigation and on steps to

simplify proof obligations in these cases rather than add to

them.   In particular, disability discrimination claims have

provoked such attention, likely because they frequently involve

an exclusive focus on the asserted justifications for disparate

treatment rather than an inquiry into employer motivation.

    In my view, this Court in Jansen took initial steps in

directing how such claims should be handled straightforwardly.

It would be my preference for this Court to continue down that

path.

    Courts across the country have struggled to articulate the

most appropriate standard for disability discrimination claims,

which differ from other types of discrimination claims in that

they often involve an admission by the defendant that a

plaintiff’s disability motivated a discriminatory action.    As

the majority notes, we have looked to federal discrimination law

for guidance interpreting our own analogous statutes.     Ante at

__ (slip op. at 22) (quoting Grigoletti v. Ortho Pharm. Corp.,

118 N.J. 89, 97 (1990)).   The Court of Appeals for the Eighth

Circuit has summarized the traditional difference between direct

and indirect approaches to proving claims under the Americans



                                11
with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213, as

follows:

           “[A]n employee may survive an employer’s
           motion for summary judgment in one of two
           ways.”    The first is to produce “direct
           evidence of discrimination,” which is evidence
           that shows “a specific link between the
           alleged   discriminatory   animus    and   the
           challenged decision, sufficient to support a
           finding by a reasonable fact finder that an
           illegitimate criterion actually motivated the
           adverse employment action.” If the employee
           does    not    have   direct    evidence    of
           discrimination, he or she may “show[] a
           genuine dispute for trial under the burden-
           shifting framework established in McDonnell
           Douglas Corporation v. Green, 411 U.S. 792,
           802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668
           (1973).”

           [Evance v. Trumann Health Servs., LLC, 719
           F.3d 673, 677 (8th Cir. 2013) (alterations in
           original)   (internal    citations   omitted)
           (quoting St. Martin v. City of St. Paul, 680
           F.3d 1027, 1033 (8th Cir. 2012)).]

    Dissatisfaction with the strict categorization of evidence

along those two lines exists, however.   In the Seventh Circuit,

a majority of judges have “join[ed] in the growing chorus of

opinions . . . that have expressed frustration with the

confusing ‘snarls and knots’ of this ossified direct/indirect

paradigm, and that have suggested a more straightforward

analysis of whether a reasonable jury could infer prohibited

discrimination.”   Hitchcock v. Angel Corps, Inc., 718 F.3d 733,

737 (7th Cir. 2013) (quoting Coleman v. Donahoe, 667 F.3d 835,

863 (7th Cir. 2012) (Wood, J., concurring)); see also Good v.

                                12
Univ. of Chi. Med. Ctr., 673 F.3d 670, 680 (7th Cir. 2012)

(“[D]irect and indirect methods for proving and analyzing

employment discrimination cases . . . have become too complex,

too rigid, and too far removed from the statutory question of

discriminatory causation.”).

    Such cases highlight that the relevant inquiry in a

discrimination case is whether there is a triable issue of fact

over the allegation that plaintiff has been subjected to

invidious discrimination.   Whether a plaintiff attempts to prove

discrimination with circumstantial evidence, direct evidence, or

some combination of both, the summary judgment analysis should

be crafted to address the core issue of causation.     In the

disability context, a number of subsidiary issues can complicate

evaluation of a plaintiff’s claim.    Those issues include, but

are not limited to:   (1) the nature and extent of the

plaintiff’s disability, including the medical evidence relied

upon by an employer to support an employment decision; (2)

whether the employer considered available reasonable

accommodations before making its decision; and (3) whether a

particular accommodation would be reasonable or would pose an

undue burden for the employer.

    In the federal context, courts assessing ADA claims have

adopted various approaches to these issues but have not



                                 13
shoehorned all of them into the McDonnell Douglas framework,

even in cases where circumstantial proofs were at issue.

Several courts have even expressed skepticism that McDonnell

Douglas is useful at all in a case where the employer concedes

that an employee’s disability motivated its employment decision.

For example, in Osborne v. Baxter Healthcare Corp., 798 F.3d

1260, 1266 n.6 (10th Cir. 2015), the court stated that the

McDonnell Douglas framework was inapplicable because the

defendant “indisputably rescinded [the plaintiff’s] job offer

because of her disability.”   The court relied on a prior holding

that “[i]f the employer admits that the disability played a

prominent part in the decision, or the plaintiff has other

direct evidence of discrimination based on disability, the

burden-shifting framework may be unnecessary and inappropriate.”

Osborne, supra, 798 F.3d at 1266 n.6 (quoting Morgan v. Hilti,

Inc., 108 F.3d 1319, 1323 n.3 (10th Cir. 1997)); see also TWA v.

Thurston, 469 U.S. 111, 121-22, 105 S. Ct. 613, 621-22, 83 L.

Ed. 2d 523, 533 (1985) (observing in federal age discrimination

context that “the McDonnell Douglas test is inapplicable where

the plaintiff presents direct evidence of discrimination”).

    This case provided the Court with the opportunity to

clarify and simplify the pretrial analysis of disability

discrimination claims where no analysis of purported pretext or

mixed motives is required.    The majority does not seize that

                                 14
opportunity.     I would step back and critically rethink our law.

In keeping with this Court’s prior jurisprudence and the

progressive policies expressed in the LAD and its implementing

regulations, the Court should always adopt a remedial approach

to LAD claims and, in implementing the statute, should do so in

a manner that will most effectively further the purpose of

eradicating invidious discrimination.     See Nini v. Mercer Cty.

Cmty. Coll., 202 N.J. 98, 108-09 (2010) (explaining that

“special rules of interpretation . . . apply” to LAD).

                            B.

    Second, it is worth recalling that the elements of the

McDonnell Douglas prima facie case exist as a tool to help

plaintiffs raise an inference of disparate treatment by an

employer.     Here, the employer explicitly admits to treating an

employee differently based on a disability or perceived

disability.    Accordingly, application of the McDonnell Douglas

burden-shifting framework does not serve a useful purpose.

    The Jansen paradigm focuses attention in disability

discrimination cases on whether the employer has met its burden

to justify terminating the employee.     Although it referenced the

McDonnell Douglas framework, the Jansen Court treated its

analysis of the proofs in that matter as if it were dealing with

a direct-evidence case.    By focusing the parties directly on the

area of dispute and the obligation of the employer to bring the

                                  15
adverse action within the sphere of justifiable disparate

treatment on the basis of disability, the Jansen Court set forth

a straightforward method of dealing with what was essentially

direct evidence of disability discrimination.   The Jansen Court

differentiated between the employer who “seeks to establish the

reasonableness of the otherwise discriminatory act” and one who

“advances a non-discriminatory reason for the employee’s

discharge.”   110 N.J. at 382.   In the former setting, where no

assertion of pretext is involved, the Court clearly kept the

burden of persuasion on the employer to justify its reason for

concluding that the employee could not reasonably do the job:

         If . . . the employer defends by asserting
         that it reasonably concluded that the handicap
         prevented the employee from working, the
         burden of proof -– as distinguished from the
         burden of production -– shifts to the employer
         to prove that it reasonably concluded that the
         employee’s handicap precluded performance of
         the job. When asserting the safety defense,
         the employer must establish with a reasonable
         degree of certainty that it reasonably arrived
         at the opinion that the employee’s handicap
         presented a materially enhanced risk of
         substantial harm in the workplace.

         [Id. at 383.]

    Disability discrimination in employment is different from

other forms of unlawful discrimination because, unlike

discrimination based on other proscribed characteristics like

race or sex, discrimination based on disability is not

prohibited if “the nature and extent of the disability

                                 16
reasonably precludes the performance of the particular

employment.”   N.J.S.A. 10:5-4.1.      This Court, like others, has

recognized the difference implicated in disability

discrimination claims.     See Zive, supra, 182 N.J. at 447 (noting

“[t]he LAD prevents only unlawful discrimination against

disabled individuals”).    As discussed above, disability

discrimination claims may involve burden-shifting related to the

employer’s justification for terminating an employee or its

obligation to make a reasonable accommodation; however, the

shifting of burdens on those issues should not be confused with

McDonnell Douglas burden-shifting as part of a plaintiff’s

initial showing of disparate treatment.

    Like all of the parties, including Saint Clare’s, and the

amici before the Court, I would recognize that this case

involves direct evidence of discrimination rather than

circumstantial evidence.    By properly identifying the type of

evidence at issue, the Court could have more plainly identified

the remaining issues for trial:     the plaintiff should be

expected to bear the burden of showing that she was the victim

of disparate treatment based on disability or perceived

disability, and the employer should bear the burden of proof to

justify its action.




                                  17
                           C.

    Whether this matter is called a direct evidence case or a

circumstantial evidence case may not ultimately be of much

consequence because the majority has correctly directed this

matter to proceed to trial.

    That said, to the extent that the majority asserts that

this cannot be a direct evidence case because plaintiff does not

present any evidence that Saint Clare’s has exhibited hostility

toward disabled persons as a class, I disagree.   We should not

perpetuate confusion over the role of hostility in

distinguishing between direct and circumstantial evidence cases.

That misunderstanding can be traced to a comment in Bergen

Commercial Bank v. Sisler, 157 N.J. 188 (1999).   Explaining the

different methods of proof available, we observed in Sisler that

to qualify as direct evidence, “[t]he evidence produced must, if

true, demonstrate not only a hostility toward members of the

employee’s class, but also a direct causal connection between

that hostility and the challenged employment decision.”   Id. at

208 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109

S. Ct. 1775, 1804, 104 L. Ed. 2d 268, 305 (1989) (O’Connor, J.,

concurring)).   To read the remark in Sisler -- which was not

necessary to the holding in that case -- to mean that a showing

of “hostility” toward an entire protected group is essential to



                                18
every direct evidence claim creates an untenable requirement in

order to establish unlawful discrimination by direct evidence.

    The above-quoted statement in Sisler, stemming from Justice

O’Connor’s concurring opinion in Price Waterhouse, can fairly

stand only for the proposition that stray remarks or other

evidence that an employer disfavors a protected group, though

probative, are not enough to provide direct evidence of a

discriminatory intent underlying any particular employment

decision.   See Price Waterhouse, supra, 490 U.S. at 277, 109 S.

Ct. at 1804, 104 L. Ed. 2d at 305 (O’Connor, J., concurring).

The comment by Justice O’Connor was critical to her position in

the “mixed-motive” context of Price Waterhouse.   In a mixed-

motive case, because an alternative, non-discriminatory motive

is in play, a plaintiff alleging disparate treatment “must show

by direct evidence that an illegitimate criterion was a

substantial factor in the [adverse] decision” in order to shift

the burden of production to the employer.   Id. at 276, 109 S.

Ct. at 1804, 104 L. Ed. 2d at 304.   Sisler cannot reasonably be

understood as asserting that a hostility showing toward a class

of protected individuals is necessary to all direct evidence

employment discrimination claims.

    Outside of the mixed-motive context, a blanket requirement

that “hostility” be shown to allow reliance on direct evidence

is misguided.   That is particularly true in the area of

                                19
disability discrimination, where we have long recognized that

unconscious discrimination -- based on generalities,

stereotypes, and assumptions regarding the capabilities of

individuals with disabilities -- can be just as invidious as

discrimination based on malice.    See Jansen, supra, 110 N.J. at

378 (“We do not suggest that the employer . . . is evil or even

inconsiderate.    The essence of discrimination . . . is the

formulation of opinions about others not on their individual

merits, but on their membership in a class with assumed

characteristics.”).    The LAD is animated by the public policy

that individuals with disabilities must be afforded every

reasonable opportunity to fully participate in society.       See

N.J.S.A. 10:5-4.1.    It is an employer’s burden to show that

essential functions of a job cannot be performed by a disabled

employee.   See N.J.S.A. 10:5-29.1; N.J.A.C. 13:13-2.8.

       To recognize that plaintiff’s claim rests on direct

evidence is not to say that there are no factual disputes left

to be resolved.    Here there are several important factual

disputes.    Plaintiff says that her employer has concocted the

asserted “essential” lifting functions of the job by which she

is being measured.    She says she is not disabled and can do the

job.    She says that the testing by KCI showed that she can

perform the necessary lifting associated with her job.       And,

finally, although she never requested accommodation and was

                                  20
never offered any accommodation by her employer, the employer

failed to explain why it could not “meet her needs,” to the

extent it perceived that she needed disability accommodation,

even though there was no discussion with her or her doctor

concerning those needs.

    Jurisprudence on the ADA supports that disputes over what

is an essential function of the job and whether an employee can

perform the job notwithstanding a disability, or perceived

disability, are for a jury to decide.      They are not issues for

the employer to decide unilaterally.      One need only look to our

own Circuit Court of Appeals to see that such factual issues

compel a matter to proceed to trial.      See Deane v. Pocono Med.

Ctr., 142 F.3d 138 (3d Cir. 1998) (en banc) (addressing similar

claim brought under ADA by registered nurse terminated by her

employer hospital due to alleged inability to meet physical

lifting requirements).    In Deane, the Third Circuit “decline[d]

to apply conclusive effect to either the job description or [the

hospital’s] judgment as to whether heavy lifting is essential to

[the plaintiff’s] job.”    Id. at 148.5


5  The Third Circuit relied on Interpretive Guidance issued by
the Equal Employment Opportunity Commission to clarify the
definition of “essential function.” Deane, supra, 142 F.3d at
148. The guidance states that although “inquiry into the
essential functions is not intended to second guess an
employer’s business judgment with regard to production
standards,” the question of whether a given function is
essential “is a factual determination that must be made on a
                                 21
    To conclude, I agree that summary judgment was improperly

granted to Saint Clare’s.   I concur in the majority’s

determination that this matter should be remanded for trial

because there are numerous factual disputes to be resolved by

the jury.




case by case basis [and] all relevant evidence should be
considered.” 29 C.F.R. pt. 1630, app. § 1630.2(n).
                                22
