If a disabled employee is about to get the ax for reasons that have nothing to do with her condition, don’t make any comments about her health. Otherwise, it could look like you really fired her because she is disabled—and it could become the basis for a disability discrimination lawsuit.
Recent case: Martina worked for a nonprofit women’s social services agency. She had two small strokes while working there and requested reasonable accommodations when she returned to work. The organization refused, and Martina believed her boss actually added to her workload after she returned in order to force her to quit.
Then Martina had more misfortune—she was stabbed on the street. While she returned to work within a few days after her strokes, this time she needed 30 days to recover.
When she returned, she learned she was being suspended pending an investigation into whether she had tried to force a client to lodge a complaint against Martina’s supervisor. She was fired shortly afterward. At the termination meeting, Martina was told she should “concentrate on [her] health” now that she was unemployed.
Martina sued, alleging she had been terminated because she was disabled. She pointed to the health comment as evidence that her disability played a part in the decision to terminate her.
The court said she could continue with her lawsuit, and that the comment might be evidence of disability discrimination. (Graham v. Women in Need, No. 13 Civ. 07063, SD NY, 2014)
Final note: You may wonder what happened to possible failure-to-accommodate claims. Simply put, Martina waited too long to make the claim. She had just 300 days from the time her request was denied to file an EEOC complaint and she didn’t meet that deadline.