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Focus on behavior, not possible disability when disciplining employees

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in Discrimination and Harassment,Human Resources

Here’s a tip that may save you from unnecessary litigation: When it comes to disciplining a disruptive worker, focus on the behavior. Don’t speculate on the reason the employee may be disruptive.

Recent case: Tim has diabetes. He filed a lawsuit against his state agency employer, alleging disability discrimination. That original claim was dismissed based on sovereign immunity.

Then Tim began arguing that he was being retaliated against at work because he had filed (and lost) the lawsuit. He claimed he was unfairly disciplined and transferred after co-workers discovered he was secretly recording their conversations. Finally, after he was terminated for not satisfactorily completing a performance improvement plan, he sued again, alleging retaliation.

Without deciding whether the agency was again immune, the court skipped to the retaliation allegations. It found that Tim hadn’t cast any doubt on the agency’s legitimate stated reasons for the transfer and termination. He hadn’t improved his communication skills, his co-workers didn’t trust him and he generally wasn’t doing a good job. Those reasons trumped any suspicions he might have had that the agency wanted to get rid of someone who filed and lost a lawsuit. (Lors v. Dean, et al., No. 12-2955, 8th Cir., 2014)

Final note: It’s still unclear whether public employers can be sued under the ADA for retaliation since the court skipped that question. Public employers should still raise immunity in all ADA cases.

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