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 plaintiffs 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, plaintiffs 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, 541 A.2d 682 (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 *32because of race, creed, color, national origin, ancestry, age, marital status, or sex.” 110 N.J. at 380, 541 A.2d 682. 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 [the treatment] was justified.” Id. at 381, 541 A.2d 682 (quoting Andersen v. Exxon Co., 89 N.J. 483, 498, 446 A.2d 486 (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, 541 A.2d 682. To balance those interests in Jansen — a case involving an employee with epilepsy — the 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, 541 A.2d 682. The Court determined that the trial and appellate courts had erred by equating the future proba*33bility 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, 541 A.2d 682 (“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, 541 A.2d 682.
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 382, 541 A.2d 682 (alteration in original) (quoting Clowes v. Terminix Int'l Inc., 109 N.J. 575, 597, 538 A.2d 794 (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 *34could not perform the job was a reasonable one. Id. at 383, 541 A.2d 682.
Zive v. Stanley Roberts, Inc., 182 N.J. 436, 451-56, 867 A.2d 1133 (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 plaintiffs burden as to the second prong “slight” when a plaintiff had been performing the job prior to being terminated based on perceived disability. 182 N.J. at 455, 867 A.2d 1133. 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 plaintiffs pretrial prima facie case. Ibid.
The majority recognizes that there are disputed facts about plaintiffs 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 standai'ds governing plaintiffs 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 plaintiffs pretrial prima facie case. Because plaintiff did not plead a failure to accommodate claim, reasonable accommodation was not at issue as part of plaintiffs pretrial case. As for absenteeism, Saint Clare’s did not rely on plaintiffs 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 triable issues of fact on which a jury could base a finding that an employer has unlawfully discriminated against an employee.
*35II.
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, 541 A.2d 682.
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 plaintiffs job as a registered nurse 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 [plaintiffs] 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 *36established. 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. 10:6-29.1 requires that “[ujnless 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 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 plaintiffs 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 complicated by the apparent lack of historical evidence that this employer subjected its nursing force to strength *37testing 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 plaintiffs 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 plaintiffs 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.
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.
*38Courts 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 21, 164 A.3d at 1041 (quoting Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97, 570 A.2d 903 (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 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 direcVindirect 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. Univ. of Chi. Med. Ctr., 673 F.3d 670, 680 (7th Cir. 2012) (“[DJirect 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.”).
*39Such 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 plaintiffs claim. Those issues include, but are not limited to: (1) the nature and extent of the plaintiffs 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 shoehorned all of them into the McDonnell Douglas framework, even in eases 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 plaintiffs] 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 inap*40plicable 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 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, 995 A.2d 1094 (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 Jmsen 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 ease. By focusing the parties directly on the area of dispute and the obligation of the employer to bring the 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 em*41ployer 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, 541 A.2d 682. 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, 541 A.2d 682.]
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 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, 867 A.2d 1133 (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 plaintiffs 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 *42plaintiff should be expected to bear the burden of showing that she was the victim of disparate treatment based on disability or pei’ceived disability, and the employer should bear the burden of proof to justify its action.
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, 723 A.2d 944 (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, 723 A.2d 944 (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 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, ai'e not enough to provide direct evidence of a discrimi*43natory 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. Sister 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 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, 541 A.2d 682 (“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 plaintiffs 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 *44disabled 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 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 plaintiffs] job,” Id. at 148.5
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.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct 1817, 36 L.Ed.2d 668 (1973).
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).
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, 541 A.2d 682. 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, 541 A.2d 682, 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.
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.
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 case by case basis [and] all relevant evidence should be considered.” 29 C.F.R. pt. 1630, app. § 1630.2(n).