Bosses aren’t docs: How to avoid a disability discrimination lawsuit
Generally, disabled workers have to request accommodations for their disabilities and aren’t entitled to any unless they do.
But what if a supervisor suspects the employee may be disabled? She should keep that thought to herself, especially avoiding any written comments that might form the basis for discipline based on poor performance. Comments like those may be used against the employer later if the employee ends up being discharged and decides to sue, alleging her disability played a part in the termination decision.
Recent case: For almost two decades, Beverly worked as systems analyst for a hospital. The hospital used software to track time spent on particular assignments; it allowed supervisor access and input.
Beverly gained a new supervisor just as she had to take time off during the workweek to take her ill husband to various medical appointments. The new supervisor noted that Beverly’s workload was the lightest of all the systems analysts and began closely tracking her productivity. She then placed Beverly on a series of performance improvement plans.
But along the way, she also prepared notes she shared with HR that mentioned she believed Beverly was depressed and might benefit from time off to “get her head straight.” Her notes also mentioned that Beverly had personal problems that affected her work.
Eventually, the hospital began considering firing Beverly. About that time, Beverly applied for FMLA leave, providing a certification that noted depression and post-traumatic stress disorder.
Beverly was fired anyway, and she sued for disability bias. The hospital argued that poor performance compelled it to terminate Beverly. But the court ordered a trial, noting that Beverly could use her supervisor’s notes to show the decision might also have been motivated by her disability. (Avery v. Community Hospital, Court of Appeal of California, 2018)
Prevent bias by justifying discipline by documenting job performance
Courts hate to second-guess employers’ disciplinary decisions. If you are sued for discrimination, give judges every reason to believe that your organization isn’t biased. The best way is to detail the surrounding circumstances that gave rise to discipline.
Create that documentation at the time you discipline, not after the fact or when you find out you have been sued. That way, the court can best understand your legitimate motivations.
Recent case: William was a professor at Erie Community College near Buffalo, where he had worked full-time since the 1980s. He has a pulmonary disability and a spinal disorder that affects his ability to walk and breathe. However, he never asked for an accommodation or told the college he was disabled.
Trouble began during a semester when William was scheduled to teach five “live” lecture courses on campus, plus two online courses. The live courses made up his usual full load for the semester. The online courses were classified as “overload,” resulting in a larger paycheck.
But a student who was signed up for one of the online classes complained to the college that she believed the course wasn’t robust enough, telling the dean that she could complete it in one weekend.
The college then took a look at William’s online courses and concluded they did not meet college standards and were also not ADA compliant in their design. The college removed William’s online classes and told him they would not be offered until he revised them.
William was offered two additional live classes to make up the lost pay. He refused, arguing that his disability prevented him from teaching more live courses.
Then he sued, alleging he had been targeted because of his disability or his age. He claimed that other professors whose online courses also didn’t meet minimum standards, but those courses weren’t taken down.
The college told the court that other professors had not received any complaints so their courses didn’t get additional scrutiny.
The court dismissed William’s suit. The college had adequately explained why it disciplined William by removing his online courses until he could update them. It characterized the online course design decision as an example of unsatisfactory job performance. It said that was a legitimate reason for discipline that justified removing the course as well as the extra pay for that course.
And because William had never requested an accommodation in the form of teaching online, removing the course didn’t violate the ADA. (Lorenz v. Erie Community College, WD NY, 2018)
Final note: This case illustrates that employers can discipline one worker for a transgression without following up to identify everyone else who may have made the same mistake or broken the same rule.
In this case, the court distinguished William from other professors by pointing out that William was the only one whose courses had generated student complaints. That’s what prompted the college to take a closer look at the course content and design.
The same idea would apply when disciplining a worker for sexual harassment after an investigation triggered by a complaint uncovered that harassment. The employer wouldn’t be required to launch a general investigation into possible harassment across the company before it punished the first harasser.