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Frustration about disability won’t cost a lawsuit

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in Discrimination and Harassment,Human Resources

It can be hard for supervisors who have to manage a disabled worker if the employee’s performance is borderline or even poor. They may want to help the employee, but they also need to make sure the work gets done.

Sometimes, that tension between sympathy and productivity leads to frustration and perhaps even ill-­chosen words. Luckily, one or two such incidents aren’t likely to end in a big jury award.

Recent case: Sonja has multiple sclerosis (MS) and worked for a hospital, first in a temporary position and then into a permanent one. When her symptoms flared up, she used a cane to get around.

She got her first performance review in 2008 and was ranked a 3.6 out of 5, which fell between “consistently meets expectations” and “sometimes exceeds expectations.” By the next review, her score dropped to 2.0—“sometimes does not meet expectations.”

During that review, her supervisor allegedly asked her if she had a serious health condition, which she acknowledged. That’s when, from Sonja’s perspective, the trouble began.

Sonja testified that her boss ex­­pressed frustration at her attempts to get around, commenting on her mobility and sometimes “simply sighing heavily” as she did her job.

When she learned her job was in danger, she requested transfer back to the temporary position. Her request was approved. Then, when that work dried up, she lost her job.

She sued, alleging that her supervisor’s attitude showed her reviews and transfer after fearing for her job were really based on disability discrimination.

The court disagreed. Without some evidence that her poor performance review wasn’t an accurate appraisal of her work, a few comments—or in this case, sighs—aren’t enough to prove discrimination. (Shryer v. University of Texas, No. 14-10079, 5th Cir., 2014)

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