When planning a reduction in force, it’s natural to decide who should stay and who should go by ranking employees based on the skills you’ll need after downsizing.
Before managers start ranking employees, make sure they understand not to use temporary medical problems and their consequences as a reason for deciding to terminate an employee. Doing so raises two risks:
- It can look as though you’re retaliating against the employee for taking time off.
- You may be accused of “regarding” the employee as disabled, which the ADA prohibits.
Juries often side with employees who lose their jobs after being seriously ill—and they often make employers pay.
Recent case: Joan Eshelman had advanced through the ranks at Agere Systems since 1981. Then she was diagnosed with breast cancer and had to take a medical leave of absence while she underwent surgery and chemotherapy.
Eshelman returned to work and explained that she was having some memory problems attributable to her chemotherapy. Short-term memory loss is a common side effect of cancer treatment. She dealt with the problem by jotting ideas and tasks in a notebook. All went well, and Eshelman even got a promotion.
Then Agere Systems had to downsize. It prepared by ranking all employees based on how their skills and talents would be used following the re-org. Eshelman was initially retained and slated for a transfer, but her ranking was changed as soon as she reminded that commuting might be a problem due to her memory problems. Eshelman was then terminated as part of the reduction in force.
She sued, alleging Agere had regarded her as disabled and assumed her memory problems rendered her unfit for any job within the company. A jury agreed, awarding her $200,000.
The company appealed, but the 3rd Circuit Court of Appeals said the jury was free to conclude that the company had regarded her as disabled when it changed her ranking. (Eshelman v. Agere Systems, No. 05-4895, 3rd Cir., 2009)
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