Make sure you can track when downsizing decision was made

Employees suddenly confronted with unpleasant alterations in their duties, responsibilities or schedules may look for reasons to avoid making the change. One tactic is to reveal for the first time a “disability” that makes it hard to make the switch and “requires” a reasonable accommodation.

Then, when you break the bad news—that the change is mandatory because the organization has decided to eliminate the previous position—the employee may sue, alleging disability discrimination or retaliation.

Protect yourself by either documenting when management made the decision to cut the position or by letting the employee know up front that the changes result from your legitimate decision to eliminate the former position.

Recent case: Kailee Kinney, who was diagnosed with lupus in 1988, worked for a TV station on the day shift for 18 months. She never informed anyone of her medical condition. Then her boss told her she was being transferred to an overnight producer’s position.

Because her doctors recommended she get regular sleep and not work the graveyard shift, Kinney told management she couldn’t accept the transfer and revealed that she had lupus.

That’s when her supervisor informed her that her daytime position had been eliminated entirely. Kinney noted the close timing of her disclosure and her loss of position, plus the fact that the station’s budget still showed her daytime position a few weeks after she announced she had lupus.

Kinney sued, alleging she had been fired because she was disabled. The trial court dismissed her case, but the 9th Circuit Court of Appeals reinstated it. The court reasoned that the timing of the announcement that her position had been eliminated was suspicious. It said a jury should decide if disability discrimination was at work. (Kinney v. Emmis Operation Company, No. 05-3661, 9th Cir., 2007)