If an employee has a disability it’s like they become untouchable, right? Wrong! As one court recently noted, following your policies consistently can be a lifesaver against claims of discrimination—even when terminated employees are in protected categories…
Case in Point: David Thomas worked as an Avis rental car service agent at the Salt Lake City airport. Thomas is hearing impaired and relies on lip reading, closed caption screens and relay services for telephone calls.
Thomas first started as a “shuttler” who moved cars and then as a lead service agent responsible for cleaning cars. Eventually, Thomas expressed interest in applying for a shift manager position that required significant face-to-face customer service. Thomas was directed to otherpositions requiring less face-to-face time, but he didn’t pursue that promotion. Instead, he applied for the shift manager position. He did not get the job.
Thomas complained twice to managers about his failure to get the position, saying he felt the decision was based on his disability. Shortly thereafter, Thomas violated the company’s lost-and-found policy by failing to immediately tag and document a bag that a customer left behind in a rental car. He said he just plain forgot. Still, Avis fired him.
He sued under the Americans with Disabilities Act for discrimination and retaliation. Avis defended the claims by asserting that Thomas’ firing was due solely to violating the company policy.
The result: The court dismissed Thomas’ case. Avis was able to show that violating the policy was a terminable offense, and that facility managers “never recommended a penalty other than termination.”
Plus, Avis proved that their handling of Thomas was consistent with the handling of other employees. The company “never deviated” from its practice of immediately and consistently terminating employees who violate its lost-and-found policy. (Thomas v. Avis Rent A Car, 10th Cir., No. 09-4201, 1/24/11)
3 Lessons Learned…Without Going to Court
1. Establish policies. Thomas admitted he knew he violated the policy and what the consequences were for doing so.
2. Don’t deviate. Consistency saved Avis in this case. Don’t play favorites or allow special favors.
3. Make accommodations. The court noted the accommodations that Avis had previously made for Thomas. They went a long way to show a lack of discrimination—and the company’s good faith.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- No separate emotional distress claims if conduct is covered by IHRA
- Be cautious with FMLA firings; ADA, FMLA can overlap
- Have manager who hired also do the firing
- Albany Times Union settles with Newspaper Guild