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Have solid reason for termination if employee previously engaged in protected activity

by on
in Discrimination and Harassment,Human Resources

Employees who file discrimination charges are protected from retaliation; any adverse action an employer takes afterward can be retaliation. The closer in time the two events are, the more likely a retaliation claim will stick. Your only real protection is having a rock-solid reason for your action.

Recent case: Katherine fell several times at work, requiring considerable time off to recover. After her second fall, she filed an EEOC disability discrimination complaint. Then she fell again and missed more work. She was eventually fired for absenteeism when she couldn’t return to work.

Katherine sued for disability discrimination, and tacked on a retaliation claim.

The court tossed out her discrimination case, but agreed to consider her retaliation claim.

That’s when the employer argued it fired Katherine because she was out of leave and couldn’t return to work. The court dismissed the retaliation claim, too. Absenteeism is a legitimate ground for discharge, so her termination wasn’t retaliatory. (Connor v. Louisiana Department of Health, No. 12-31254, 5th Cir., 2013)

Final note: In this case, more time off would not have been a reasonable accommodation under the ADA because Katherine had exhausted her FMLA leave two months earlier. She had already been on unpaid leave for several weeks after using up all other time off. Her doctors still couldn’t estimate when she would be able to return to work.

Simply put, indefinite leave isn’t reasonable. Therefore, it isn’t a required ADA accommodation.

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