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Discharging ill employee for performance? Better make sure you can prove it

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Performance Reviews

Courts often suspect the worst when employers fire severely ill employees. A judge may bend over backward trying to find a way to help the employee. An employer that can’t offer concrete, solid and compelling reasons for the termination may very well find itself trying to defend a “regarded as disabled” lawsuit.

Recent case: Kenneth Whitworth worked as a regional sales manager for Law Enforcement Associates (LEA). He did well until he was hurt in a car accident. To accommodate his recovery, LEA allowed him to work from home. He then returned to work after his doctor released him.

A few months later, Whitworth was hit with a devastating diagnosis—pancreatic cancer. He had major surgery, biopsies and other medical care, but insisted that his medical problems wouldn’t interfere with continuing work. Indeed, he kept working, although his sales numbers declined.

While he was still recovering from abdominal surgery and waiting to start chemotherapy and radiation treatments, LEA fired him for supposed low sales. But LEA had never set sales goals for Whitworth or warned him about his slowing sales.

Whitworth sued, alleging disability discrimination. The court said he couldn’t claim he was disabled since he had clearly continued working and insisted he was not too sick to continue. But the court said he could sue for being regarded as disabled and therefore was illegally discriminated against because he had a history of disabling illnesses. Whitworth will get a trial. (Whitworth v. Law Enforcement Associates, No. 6:06-CV-489, ED TX, 2008)

Final note: This is the sort of case you never want a jury to hear. If the employer cannot prove poor performance to the jury’s satisfaction, chances are jurors will think the worst.

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