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Handle return-to-work issues with care

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in Discrimination and Harassment,Human Resources

Employees and their lawyers know to dig deep when they’re considering filing a discrimination lawsuit. They hunt for anything that smacks of unequal treatment based on some protected classification—and if they find something, they’ll sue.

Consider this example: An employee takes temporary disability leave and wants to return to work with accommodations. In addition to being disabled, she is a black woman. Her employer turns down her accommodation request. But then she discovers that another disabled employee was offered a different position as an accommodation. That employee happened to be a white man. Next stop: the courthouse, where a discrimination lawsuit now argues that the first employee was treated differently than another disabled employee because of her race and sex.

Recent case: Kimberly Norman, a black woman, worked as a Union Pacific Railroad train dispatcher until a bout with irritable bowel syndrome necessitated temporary disability leave. The railroad allowed the leave and concluded (wrongly) that Norman’s disability was a mental one.

Meanwhile, a white male train dispatcher developed mental illness and also took temporary disability leave. When he wanted to return to work, the railroad found him another position.

It refused to find one for Norman. She sued.

The court initially concluded that the two were similarly situated enough to support a sex and race discrimination case. It ended up dismissing the case, though, because the railroad finally argued that the white male was treated differently for a reason: When asked, he produced medical certification that he was able to return to work.

Norman had also been asked to provide a back-to-work note, but refused to do so. Therefore, the court concluded, she could not compare herself to the disabled white man. (Norman v. Union Pacific Railroad Company, No. 09-2651, 8th Cir., 2010)

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