Question: Since when is a manager’s mere “concern” over a disabled employee’s ability to do the job enough justification to terminate? Try never. In the dictionary, “concern” is synonymous with “worry” and “fear.” So, a manager who is wringing his hands with potential concerns about an ADA-protected employee’s performance may soon have bigger things to be concerned with ... like a federal lawsuit.

A new court decision involving a RadioShack employee broadcast this lesson loud and clear. The court sent the case to a jury trial because the fired employee could show that his termination resulted from “bias concerning his disability” rather than the performance reasons cited by RadioShack. (Walerstein v. RadioShack Corp., E.D.N.Y., No. 04 CV 1096 (SJ) (SMG), 3/30/07).

What does this new ruling mean to you?

In this case, a part-time sales associate of 19 years could only see out of one eye and had severe hearing loss. He requested and received accommodations, including assistance from other employees to record his sales entries in the computer. His store manager said he was a model employee, but the district manager was concerned that the employee could perform his job because his limited vision “might prevent his noticing a customer in need of assistance.” Eventually, the district manager fired the employee, allegedly because of tardiness and poor sales records.

Predictably, the employee filed federal and state claims. RadioShack argued that the employee was not qualified to perform his job, and it also contended that he couldn’t show that his disabilities led to his discharge. It pointed to the employee’s application for Social Security Disability benefits, in which he claimed he was unable to work because of his vision and hearing impairments. Radioshack’s position was he could not do the essential functions of the job with or without a reasonable accommodation.

Result: The court didn’t buy it, ruling that statements made on a disability application do not necessarily bar an ADA claim. The court also didn’t go for RadioShack’s rationale that it never denied the employee a reasonable accommodation and, therefore, did not violate the ADA. The court recognized that the ADA doesn’t only apply to situations in which requests for accommodation have been denied or ignored because the statute was also “designed to prevent discrimination against people with disabilities because of animus towards disability.”

Lessons Learned ... Without Goint to Court

• Train all managers on all EEO laws.  The courts have already scolded employers ruling, “[L]eaving managers in ignorance of the basic features of employment laws is an ‘extraordinary mistake and amounts to reckless indifference.” (Mathis v. Phillips Chevrolet, Inc., 7th Cir. October 2001).  An effective one-day compliance course for this district manager may have successfully averted this unfortunate situation.  It is always cheaper to train managers than litigate and have bad press.
  
  
• Teach managers to reach out “before” final decisions.  The best practice under these circumstances is to train managers to identify ADA issues and then immediately reach out to internal strategic partners like HR or legal departments before making a crash and burn decision that could drag the company to court.
  
  
• Concerns ≠ Reality.  Managers need to be trained that their concerns, fears and worries need to be challenged by the reality of the record.  Also, a second pair of eyes on the situation is always a best practice.
  
  
• Inconsistency creates liability.  Before terminating an employee, look at the personnel file.  If there are “walk on water” performance evaluations and suddenly you want to fire the employee, the court and juries may scratch their heads and wring their hands inquiring what was the real motivating factor behind the decision.
  
  
• Apply “The Smell Test”.  If the situation “smells fishy” a judge will want to send the case to a jury to decide if the action taken against the employee really stinks.