It’s hard to convince a judge or jury that the same person who hired someone knowing his protected status would later turn around and fire that employee because of that very protected status.
That’s one reason you should keep careful track of which manager recommended hiring someone who is obviously a member of a protected class—such as an employee who is disabled because of a missing limb.
It may prove valuable if you end up firing the worker and he files a disability discrimination lawsuit.
Recent case: Davey Tree performs line-clearing work for public utilities, which includes clearing tree branches from power lines, clearing rights-of-way and chemical brush control.
Michael, a general foreman, hired Joel first as a trimmer and then urged his promotion to foreman shortly after. Joel has a prosthetic leg, and Michael knew about the disability and sometimes even commented to others on his team that Joel worked harder than others did despite having a missing limb.
Then Joel, while out with his team of trimmers, used a herbicide to clear vegetation around several power lines on state game lands. The area was a protected habitat with vegetation that hadn’t been disturbed for decades. Joel had been warned about the land while trimming the area before.
Michael recommended that the company terminate Joel after the damage meant it had to pay for land restoration. Joel was fired.
Then he sued, alleging he had been terminated because of his disability.
But Davey Tree argued that it made no sense for the same supervisor who hired and promoted Joel to then terminate him when Michael had been aware of the disability all along. The court agreed and dismissed the case. (Conway v. Davey Tree Expert Company, No. 3:14-82, WD PA, 2015)
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- With handbook warning, it's OK to deviate from policy