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It’s time for a talk if you’ve heard a boss has been disparaging disabled employees

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in Discrimination and Harassment,Firing,Human Resources

Are you hearing that a supervisor is making less than flattering statements about a disabled employee or disabled individuals in general? Then it’s time to call in the supervisor and explain to her it has to stop.

That’s especially true if the super­visor happens to have a disabled ­employee under her direction and recommends that the employee should be terminated.

Recent case: Roslyn McCoy has a learning disability, dyslexia. She was hired to work for the Department of the Army under a federal program that provides additional funding for agencies that hire people with disabilities on a trial basis. Her supervisor was Linda Brown.

Before McCoy started work, she and Brown discussed accommodations that McCoy would need to succeed as an administrative assistant. One of those was the promise that Brown would proofread McCoy’s work.

Things went well enough, and Brown converted McCoy’s temporary position to a longer two-year assignment. Then things fell apart.

Brown was heard making snide comments about disabled individuals. Another employee reported Brown said all her subordinates were “handicapped by one form of stupidity or another.” Brown also reportedly said that McCoy was “not of average intelligence, nor could she read or write.”

Finally, another employee claimed Brown, who has a disabled daughter herself, expressed “great anger and resentment” about the time she had to devote to the child.

Eventually, Brown fired McCoy, allegedly for lying about not having to proofread her work and for claiming credit for setting up a meeting.

McCoy sued, claiming the real ­reason was disability discrimination.

The Army claimed that there was no evidence of bias. The court disagreed, citing Brown’s many statements about disabled persons generally (including her own daughter) and McCoy specifically. It said a jury should decide whether the reasons Brown gave for firing McCoy were the real reasons or whether disability discrimination played a major role.

Finally, the court rejected the Army’s assertion that Brown couldn’t be guilty of discrimination because it was she who hired McCoy in the first place.

This is the so-called “same actor defense.” Presumably, someone who knows an individual belongs to a protected class and then hires that ­applicant isn’t prejudiced and therefore wouldn’t fire the employee because of her protected characteristic.

The court said that may be the general rule, but a supervisor who wasn’t prejudiced in the first place could develop prejudice after hiring an applicant. For example, a super­visor may grow to resent accommodations a disabled employee needs and develop antipathy toward the employee as well as disabled people in general. That, it said, may be what happened in this case.

A jury will decide whether McCoy was fired because she was disabled. (McCoy v. Department of the Army, et al., No. 09-1973, ED CA, 2011)

Advice: It’s your job in HR to stay on top of accommodations. For example, make sure supervisors document what accommodations have been promised. Then, before approving a discharge, check the accommodations list.

Had there been a clear record that Brown agreed to proofread McCoy’s work, then Brown couldn’t have ­accused McCoy of lying about not having to proof her work.

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