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Poor performance or disability discrimination? Keep good records to prove you’re not biased

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in Discrimination and Harassment,Employment Law,Firing,Human Resources,Leaders & Managers,Performance Reviews

While employers have an obligation to offer reasonable accommodations to help employees who are disabled, it doesn’t follow that disabled employees can keep their jobs if they simply can’t get work done.

But termination often causes a disability discrimination lawsuit. Be prepared to show exactly how poor the employee’s performance really was.

Recent case: Anatol Kivman worked for UPS as a senior programming analyst in the payroll department. It was a tough job that required concentration. Kivman suffers from poorly controlled type 2 diabetes and a neurological disorder that affects his ability to concentrate and think. When his supervisors complained about his work, Kivman frequently blamed his illness.

UPS fired him for poor performance and he sued, alleging the real reason was discrimination against the disabled.

But UPS showed the court that Kivman’s programming work contained many serious errors and that he had difficulty following directions, remembering assignments, working independently and meeting deadlines.

The court ruled for UPS. While Kivman was disabled, he couldn’t show that UPS used poor performance as a pretext for firing him because of his disability. (Kivman v. UPS, No. 09-1205, DC NJ, 2010)

Final note: Kivman didn’t allege failure to accommodate his disability in his lawsuit, so the court didn’t consider that question. But, he probably would have lost that case too, since it looks as if he was unable to perform the essential functions of his job at all.

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