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Beware suspicious timing when taking action against employee undergoing medical treatment

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in Firing,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

Here’s another good reason to meticulously track performance: If you end up firing or demoting someone without good documentation, you may end up in court.

Bad timing alone could trigger a lawsuit if the employee engaged in some sort of protected activity just before the action.

Recent case: Brenda Coe was a manager at a Menards home improvement store and received a merit raise a few days before she was scheduled to undergo in vitro fertilization. She told her boss she had to leave early the next day to have the surgery.

While she was gone, the company decided to demote her—allegedly for poor performance.

The EEOC sued on Coe’s behalf, alleging she had been discriminated against because she was going to undergo in vitro fertilization.

Menards countered that it had legitimate reasons for demoting her. The court didn’t buy it, especially since the company had just given Coe a merit raise. That was enough to send the case to a jury. (EEOC v. Menards, No. 08-0655, SD IL, 2010)

Final note: This case is just one example of the EEOC’s new, aggressive stance in taking on employers it perceives as punishing pregnant women and those trying to become pregnant.

Other factors to consider: Childbearing is an essential function under the ADA; infertility can be a serious health condition under the FMLA.

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