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Unequal performance standards shout—not whisper—disability discrimination

by on
in Discrimination and Harassment,Human Resources

Treating disabled employees differently than others raises all kinds of red flags that disability discrimination may be afoot. For example, setting higher standards for disabled employees than you do for others is a surefire way to end up in front of a jury, as the following case shows.

Recent case: Jeffrey Willnerd worked for First National Bank for many years until he was laid off during an economic downturn. It was what happened in the months before that layoff that led the 8th Circuit Court of Appeals to order a jury trial to determine whether the bank violated the ADA.

While working at the bank, Willnerd developed a rare condition that left him unable to speak above a whisper. Sometimes he lost his voice entirely. About that time, the bank began looking at his branch’s performance and told Willnerd he had
to meet a financial quota. None of the other employees had to do that. He didn’t meet the quota and was terminated.

Willnerd sued, alleging disability discrimination.

The trial court dismissed his case, but the 8th Circuit Court of Appeals reinstated it. The court said the timing was suspicious. The fact that the entire branch didn’t have to meet the quota Willnerd faced added to that suspicion. A jury will decide whether Willnerd was discharged because of his disability. (Willnerd v. First National Bank of Nebraska, No. 07-3316, 8th Cir., 2009)

Final note: If you set performance standards, do so evenhandedly. This one looked like a sham.

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