Warn bosses that they should never link an employee’s performance deficiencies to a supposed disability. The focus should be strictly on what the worker has or hasn’t accomplished and how that compares to your standards—not on underlying reasons for success or failure.
Reason: Even one comment about disability may be construed as direct evidence of discrimination.
Recent case: After Vergine, a Los Angeles County employee, settled a sexual harassment complaint, she was transferred to a new job for a fresh start. Her new manager knew nothing about the complaint and settlement.
Three years later, Vergine sued, alleging that she had been discriminated against because of a disability for which she had been previously accommodated but which was no longer a problem.
For example, she said that while she consistently received positive comments on, she was only rated “qualified” for the job. Vergine testified that when she challenged her rating, her boss told her it was because of her disability.
The court found that such a comment—made contemporaneously with an adverse employment action—constituted direct evidence of discrimination. (Barseghyan v. County of Los Angeles, B249184, California Court of Appeal, 2014)
Final note: A single comment related to an employee’s disability can, in certain specific circumstances, be enough to swing the pendulum in the employee’s favor and to keep a disability discrimination claim alive.
Supervisors must keep discussions of performance and disability completely separate. It’s also critical to appropriately document and support the reasons for performance ratings.
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