Telling an employee to “focus on her health” is not disability discrimination

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Rather, it’s just being — oh what’s that word — ‘human.’

Like in this case, in which a supervisor with breast cancer was disciplined — yes, folks, you can reprimand an employee with an ADA “disability” or FMLA “serious health condition” — for allegedly calling other employees names such as “idiot,” “moron,” and “dumbass;” and also striking a few of them on the head for good measure. The supervisor-plaintiff was then demoted and given a pay cut commensurate with the other deputy clerks at her position. When told of the demotion and pay cut, her boss also mentioned that “she should probably focus on her health rather than worry about the stress of supervising people.”

My heavens! I’ve caught the vapors. A boss who expresses concern for the welfare of his employees. Sounds like a terrible place to work!

Without the sarcasm, the court determined that suggesting to the supervisor-plaintiff that “she should probably focus on her health” is not disability discrimination:

The fact that Defendant Brown mentioned Plaintiff’s ability to focus on her health as a potential positive side effect of no longer having a supervisory role does not require the conclusion that Plaintiff’s FMLA leave or her disability were reasons for her demotion. “[G]eneral, vague, or ambiguous comments do not constitute direct evidence of discrimination because such remarks require a factfinder to draw further inferences to support a finding of discriminatory animus.” As pointed out by Defendants, this general statement is just as likely to be construed as conciliatory as discriminatory.

We don’t have to walk around the office on eggshells, worried that if we ask a co-worker with a sniffly nose how she’s feeling, that she’s going to document the comment and later use it against us in a subsequent discrimination action. Although, I’ve been known to give the stink-eye to co-workers who read my blog posts and ask me how much I has to drink the night before.

Look guys, who among us, doesn’t enjoy two Baybreeze boilermakers while blogging in bed after a long day? Pardon me for being civilized.

Now, if you’ll excuse me, I have some Keeping Up With The Kardashians to watch.

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  • michael caldwell

    Great advice here

  • Alex

    Awesome post!

  • Coward

    I think there is a typo in your 4th paragraph where you say “she should probably focus on her health” is disability discrimination.” I think your missing a “not” between is and disability.

    • Good catch, Coward.

      P.S. – “Your” should be “you’re.” Just sayin’ 😉

  • Richard Rolandi

    Actually Eric, there is a potential ADA/ EEOC issue here.

    The incident was used to discipline the employee’s performance and as a result, she was both demoted and given a pay decrease. There is no mention if there were previous warnings or not. My guess is there were. I would also guess that the employee required recurring time away from the office for post surgical chemo and/or radiation. The manager most likely would have had to work around this with current staffing levels, which tends to lead to ‘ill will’ as the manager’s job just became tougher due to scheduling around someone’s illness. Cancer recovery is rarely a one shot FMLA occurrence like recovery for a broken limb.

    The comment concerning her health issues may have been a contributing factor, as far as the manager was concerned. The manager was stupid (sorry, no other word fits) for introducing it and opening the door. It can be construed a saying … ‘I know you have been having health issues and these issues may be getting in the way of your job performance and maybe, just maybe, it makes sense to getting that all sorted out before you tackle advancing your career.’

    ‘Human’ would have been disciplining the employee without the pay cut. The pay cut is a huge red flag, as wages are not discretionary like a bonus is.

    Rich

    • Thanks for the comment, Rich. If, indeed, the employee’s cancer motivated the discipline, then I would agree with you. I don’t see it here. I see it as an after-the-fact comment; one either made out of genuine concern or to cushion the blow of the discipline — but certainly not a motivating factor.

  • Richard Rolandi

    Thanks Eric. I was not referring to the cancer so much , but rather the post care once someone returns from FMLA . Most companies and managers are very accommodating for the initial leave, it is the post leave care … chemo for cancer, physical therapy for knee and spine surgeries, etc that a manager must plan around that tends to stress out the manager over time. This is all speculation, but I have been on both sides of this situation and the manager’s comments along with the pay cut and demotion were red flags.

    Rich

  • SES_Elizabeth

    “ask me how much I has to drink the night before.”
    I am wondering if the “has” in this sentence was intentional to mimic slurring, but if not that might make it even better.

    • An unintentionally ironic typo. I wish I could say I was really on my game that day.