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Viscik v. Fowler Equipment Co.

March 28, 2002



(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 interests of brevity, portions of any opinion may not have been summarized).

This appeal presents three issues: Whether plaintiff established a handicap within the meaning of the Law Against Discrimination (LAD); whether the trial court erred in instructing the jury regarding "reasonable accommodation;" and, whether the trial court erred in instructing the jury that the standard to be applied in assessing an employer's justification for termination is that of a "reasonable, objective employer."

On June 29, 1998, plaintiff Regina Viscik started working for Fowler Equipment Company, Inc., (Fowler) as its billing clerk. Viscik had been overweight her entire life due to a metabolic disorder that prevented her body from breaking down fats. At age twenty, Viscik had a car accident in which she suffered burns to her legs that would not heal due to her obesity. As a result of the weight problem and the accident, Viscik suffered from degenerative arthritis in her hip and knee joints, restricted lung capacity, and depression. Her inability to take in enough oxygen prevented her from performing any lifting or heavy work. At the time she was hired by Fowler, Viscik stood five feet, nine inches tall, weighed approximately four hundred pounds, and occasionally used a cane.

Prior to Viscik's hiring, Fowler had hired a consultant, Joyce Killmer, to analyze its operations and identify ways to improve them. Killmer recommended that the billing clerk's office be moved out of the customer services' office. As a result, the clerk's office was relocated some distance from the customer services' office, though in that office sat the fax machine and two-way radios frequently used by the billing clerk.

On the second day of work, Viscik first informed Killmer of her condition and that she could not move around as quickly as others. On that day, the first complaints about Viscik's work ethic were made. Although there was some testimony that the complaints were based on Viscik's productivity and her use of the phone for personal calls, Killmer recalled that they had to do more with her inability to stand by the copier and fax machine. On Viscik's third day of work, Killmer observed Viscik experiencing some difficulty as she stood waiting for a dispatcher to train her to retrieve faxes. When Killmer advised Fowler of this, Fowler instructed her to fire Viscik. Killmer testified that Fowler made no mention of Viscik's work ethic or personal calls. Viscik was discharged on her fourth day of work. Killmer advised Viscik that Fowler needed someone who could move around the office better then she could. Seven weeks later, Viscik secured another position and proceeded to sue Fowler.

At trial, Dr. Shen, Viscik's treating physician since 1991, testified that Viscik's condition had been diagnosed as "morbid obesity," and that it was genetic. "Morbid obesity," testified Dr. Shen, refers to a disease or diseases that occur as a result of obesity and prevent normal activity, such as Viscik's arthritis, restrictive lung disease, and depression. Dr. Shen further testified that Viscik's obesity constituted a handicap.

The jury returned a verdict in Viscik's favor, awarding her $50,000 in damages and counsel fees. New trial motions filed by both parties were denied. Both parties appealed, raising, in part, the three issues before this Court: that Viscik failed to prove that she was handicapped and that the trial court erred in two aspects of the jury charge. The Appellate Division affirmed the trial court's judgment in all respects, holding that Viscik was handicapped, that although the trial court erred in instructing the jury on the "reasonable, objective employer" standard, the error was harmless and did not mislead the jury; and, that the facts supported a "reasonable accommodation" instruction.

The Supreme Court granted Fowler's petition for certification.

HELD: The Court is satisfied, as was the Appellate Division, that the evidence supported the jury's finding with regard to plaintiff's handicap. However, the trial court erred in instructing the jury on "reasonable accommodation" and that charge was prejudicial to defendant. A new trial is warranted.

1. The LAD was enacted in 1945 with the express purpose of ensuring that the civil rights guaranteed by the State Constitution are extended to all its citizens and its provisions are to be liberally construed. Under LAD, a person must first establish a prima facie case of discrimination by showing that he or she (1) belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and that (4) the employer sought to, or did fill the position with a similarly-qualified person. The establishment of a prima facie case gives rise to a presumption of discrimination. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. The burden would then shift back to the employee to show that the employer's proffered reason was merely a pretext for discrimination. The threshold inquiry in a handicapped discrimination case is whether the plaintiff in question fits the statutory definition of handicapped, which could be either physical or non-physical. The term "handicapped" in LAD is not restricted to "severe" or "immutable" disabilities and has been interpreted as significantly broader then the analogous provision of the Americans with Disabilities Act (ADA). (Pp. 13-20)

2. Viscik's testimony, medical history, and her expert's opinion fully support the finding that she was physically handicapped within the meaning of LAD. Viscik suffered from disease or pathology as a result of her obesity, resulting in limited mobility as well as other infirmities. (Pp. 20-22)

3. A jury charge must correctly state the applicable law. An incorrect jury charge constitutes reversible error only if the jury could have come to a different result had it been correctly instructed. In this case, the reasonable accommodation charge, objected to below, was prejudicial to Fowler. The charge directed the jury to consider a claim not at issue in the case and mixed two theories, pretext and reasonable accommodation, completely and purposefully distinct theories. Moreover, the charge held Fowler to a standard on which no proofs had been offered. A new trial is warranted. (Pp. 23-26)

4. Both parties and the Appellate Division agree that the trial court erred in instructing the jury to assess Fowler's reasons for terminating Viscik under an objective employer standard. The fact-finder is required to consider the employee's performance or other qualities in light of the employer's subjective standards, including work ethic. The focus on subjectivity at the most critical stage of proof is consistent with LAD. Instructing the jury regarding the proper standard was critical to the outcome. On remand, the charge should be framed properly. (Pp. 26-29)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for further proceedings consistent with the Court's opinion.


The opinion of the court was delivered by: Long, J.

Argued February 11, 2002

On certification to the Superior Court, Appellate Division.

Four days after she was hired, plaintiff Regina Viscik (Viscik) was discharged from her position as a billing clerk with defendant Fowler Equipment Company, Inc. (Fowler).

Thereafter, Viscik filed a complaint against Fowler alleging that her obesity was a handicap and that she had been discharged on the basis of that handicap in violation of the Law Against Discrimination (LAD). N.J.S.A. 10:5-1 to -42. She recovered a judgment that was affirmed by the Appellate Division. We granted Fowler's petition for certification and here revisit the standards applicable to a handicap case under LAD.


A trial was conducted at which the following facts were established. Regina Viscik has been overweight her entire life. At the age of seven, she weighed one hundred pounds, but doctors were confident that she would outgrow her heaviness. Viscik's weight, however, continued to increase; her teenage years were marked by visits to specialists who prescribed diet pills and shots. At age eighteen, Viscik was hospitalized and placed on a diet. During her time in the hospital, doctors first diagnosed a metabolic disorder that prevents Viscik's body from breaking down fats and that results in her obesity. Due to that imbalance, everything Viscik eats becomes fat.

Two years later, Viscik was in a car accident where she suffered burns on her legs. Those burns would not heal due to her obesity. As a result, Viscik underwent weight-loss bypass surgery, during which all but twenty inches of her large intestine were disconnected. That section of intestine was then attached directly to her bowel, allowing food to pass through her body undigested. Although the surgery resulted in a dramatic loss of weight (Viscik lost 350 pounds in only one year), it also caused liver damage, kidney stones, gastritis and malnutrition. Due to the severity of those side effects, Viscik had the surgical procedure reversed and within a short time regained much of the weight she had lost.

As a result of her weight, Viscik has suffered from degenerative arthritis in her hip and knee joints, restricted lung capacity, and depression. She has also been diagnosed with bronchial asthma and asthmatic bronchitis, "underlying illnesses" that are further complicated by her weight. As a result, Viscik cannot take "enough oxygen into her system" or perform "any lifting or heavy work."

At the time she was hired by Fowler, Viscik stood five feet, nine inches tall and weighed approximately four hundred pounds. Her weight decreased to 326 pounds at the time of trial. She continues to take medication for asthma, arthritis and gastric problems. Occasionally, Viscik requires the use of a cane due to arthritis and knee problems resulting from her accident.

Despite those challenges, Viscik has been working since age eighteen. She is the primary breadwinner for her sister-in-law, her 20-year old niece, and her niece's two young children. Before applying for a position with Fowler, Viscik worked for three years as an accounts payable clerk for a manufacturing company.

Fowler is in the business of selling and servicing washer/dryer units for laundromats. In March of 1998, in an effort to render itself more efficient, the company hired Joyce Killmer (Killmer), a consultant, to analyze its operations and identify ways to improve them. One of Killmer's recommendations was to move the billing clerk out of the customer services' office. That space was too cramped and the billing clerk had difficulty concentrating because she was constantly answering the customer service phone. In May of that year, Fowler was in need of additional employees. Killmer drafted advertisements for three positions: customer services, accounts payable, and billing clerk.

In June of 1998, Viscik answered Fowler's ad along with fifteen other applicants. Although her cover letter did not specify which position she was seeking, her resume reflected her accounts payable background. Killmer was impressed with Viscik's resume, and invited her to interview with the company. Viscik informed Killmer at the interview that she was willing to accept and learn any of the available positions. Viscik was asked to return for a second interview with Fowler's general manager; he also was impressed with Viscik after speaking with her.

After the meeting with the general manager, Killmer brought Viscik's resume to the attention of Lainie Fowler (Mrs. Fowler), the owner's wife and the office administrator. Mrs. Fowler testified that Viscik's resume appeared acceptable and advised Killmer to hire her, as long as she was qualified. When Killmer informed Mrs. Fowler that Viscik was obese, Mrs. Fowler responded that she did not care what Viscik looked like, as long as she could do the job. Killmer testified ...

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