On certification to the Superior Court, Appellate Division, whose opinion is reported at 214 N.J. Super. 51 (1986).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, Garibaldi, and Stein. The opinion of the Court was delivered by Pollock, J.
On this appeal, the basic issue is whether the employer, Food Circus Supermarkets, Inc. (Food Circus), reasonably concluded that the epilepsy of its former employee, Daniel Jansen, presented a materially enhanced risk of harm to him or other employees. Acting on that conclusion, Food Circus terminated Jansen's employment. The Chancery Division found that the employer reasonably reached that conclusion, and the Appellate Division affirmed. 214 N.J. Super. 51 (1986). We granted certification, 107 N.J. 107 (1987), and now reverse and remand to the Chancery Division. We find that the employer did not act reasonably in concluding that Jansen's epilepsy constituted a danger to him or his co-employees. We hold further that in a case involving handicap discrimination the employer bears the burden of proving that "the handicap reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1; see N.J.S.A. 10:5-2.1 (stating that the employer may terminate "the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment").
An estimated 2,135,000 Americans suffer from epilepsy. Nearly half that number eliminate or "control" epileptic seizures through medication; for another 30%, medication significantly reduces the number of seizures. See Interviewing Guides for Specific Disabilities: The Epilepsies, United States Department of Labor, Employment and Training Administration (1984). Despite recent advances in knowledge and treatment of epilepsy, it remains a misunderstood handicap. The term "epilepsy"*fn1 itself evokes stereotypical fears that perpetuate
discrimination against its victims in all aspects of life, including employment. As the United States Supreme Court recently noted, "[a] review of the history of epilepsy provides a salient example that fear, rather than the handicap itself, is the major impetus for discrimination against persons with epilepsy." School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, n. 13, 107 S. Ct. 1123, 1129 n. 13, 94 L. Ed. 2d 307, 319 n. 13 (1987) (quoting brief for Epilepsy Foundation as amicus curiae 5-14).
Epileptics are not all alike. Some may suffer one or two seizures in a lifetime; others suffer them more frequently. The nature, timing, and frequency of seizures vary from one epileptic to another. See Interviewing Guides for Specific Disabilities: The Epilepsies, supra. Accordingly, epileptics must be viewed not as fungible members of a class, but as individuals.
Daniel Jansen suffers a mild form of epilepsy known as psychomotor or temporal lobe epilepsy, a form that causes "partial, complex seizures." The seizures are called "partial" because they involve part of the brain, and "complex" because they are associated with loss or impairment of consciousness. Although he has suffered from seizures since he was four, Jansen, who is now 39 years old, was not diagnosed as an epileptic until 1978. Four years earlier, on July 15, 1974, he
began working as a meat cutter for Food Circus, where he worked without incident for eight years. His work entailed the use of butcher knives and other cutting tools, including a band saw. Before working for Food Circus, Jansen had graduated from high school; served two years as a truck driver in the Marines, from which he received an honorable discharge; and held a job as a warehouseman. Since 1978, Jansen has controlled his seizures through the use of prescribed drugs. In 1980, he suffered his only generalized seizure, which occurred when he stopped taking one form of medication because of its side effects. In September 1980, Jansen started taking a new medication. Between that date and July 1982, he experienced six to ten seizures, all of which occurred shortly after he awoke, and none of which occurred at work.
For its part, Food Circus has an affirmative policy of hiring the handicapped, and currently employs two other epileptics, one of whom suffered a seizure at work but is still employed. Food Circus cooperates with community-based organizations to hire the retarded and emotionally disadvantaged, and has received an award for the training and employment of the handicapped. On learning of Jansen's epilepsy, Food Circus continued his employment without questioning his ability to work as a meat cutter until the events of July 17, 1982.
On that date, the meat department manager, Dominick Iannuzzi, was instructing Jansen on cutting top round steaks. While Jansen was cutting steaks with a large steak knife, he suffered a seizure in which he stopped and stood staring, with the knife in his right hand. When Jansen did not respond to inquiries, Iannuzzi removed the knife from Jansen's hand. Jansen sat on the butcher's block, noticed another employee, and said, "this is it, it's all over," and walked out of the room. Found in the restroom, Jansen seemed dazed and did not remember the incident.
The store manager sent Jansen home and told him not to return without a doctor's letter of approval. Four days later,
Jansen returned with a note from his treating neurologist, Dr. Silbert, stating that Jansen's seizures "have been under fair control on medication," that he had "increased [Jansen's] medication so as to help prevent recurrence of such seizures in the future," and that Dr. Silbert expected "to be able to achieve better seizure control for Mr. Jansen."
For the next two days, Jansen performed his tasks without incident, except for some unfortunate remarks to a co-employee, John Snel, on July 22. Regarding this incident, Snel testified at trial:
[Jansen] explained to me well I guess this is it. I guess I am going to lose my job. But he said I think I am going to go trapping in Oregon. But before I go I am going to take six people with me. While he sat there he sat there with an open hand and a clenched fist and hitting his hand over and over again.
According to Jansen, his remarks were misconstrued; he intended not to threaten, but only to communicate that he was thinking of taking six people with him to Oregon.
On July 23, when the meat department employees learned that the July 17th incident was the result of a psychomotor seizure, they complained to the store manager that they feared for their own safety and did not want to work with Jansen. In the interim, Iannuzzi apparently circulated among the employees, including Snel, excerpts from an unidentified medical dictionary that allegedly described psychomotor epileptics as having homicidal tendencies. This misinformation spread among the workers, and the manager told Jansen to leave and not to return until further notice. On August 5, a Food Circus vice president advised Jansen he was suspended "pending examination by doctors of our choosing to determine your competency, from a medical standpoint, to return to work."
Food Circus arranged for medical examinations by Dr. Whalen, a neurosurgeon, and by Dr. Corral, a psychiatrist. Dr. Corral found no psychopathology, but concluded: "I still think, as I did in my general impression of Mr. Jansen, is that considering the kind of neurological that he has, impresses me as risky and dangerous to perform the task that a meat cutter
has to do." Dr. Whalen performed a complete physical and neurological examination and sent a report, concluding:
Thusfar, he has not been really adequately controlled by medication, but even if such control is obtained, one can never state with certainty that such a patient may not have another attack in spite of adequate medication. For these reasons, I think that such patients, including Mr. Jansen, need to be protected, as well as other people, from the effects of such seizures, and I think, therefore, that any occupational activity in which the patient might injure himself or others, were he to have a seizure, should be avoided. Therefore, as I indicated in my initial report, I think that the occupation of butcher and meat cutter entailing as it does, access to knives and other dangerous instruments, is inappropriate and potentially hazardous in this instance.
Based on the two doctors' reports, Food Circus terminated Jansen's employment, stating: "The reports of our Doctors and their final conclusions do not certify you to be reinstated in your position as a butcher."
Within five weeks, Jansen obtained letters from three physicians certifying that he could work as a meat cutter without endangering himself or others. A neurologist, Dr. Masland, who examined ...