Another employer learns the hard way that it’s better to hire slow and fire fast


A company fired one of its employees just ten days after learning about his disability. Although the proximity between the two doesn’t confirm that the employee’s disability motivated the employer’s decision, some other vital factors led a federal appellate court to overrule a lower court’s decision in favor of the employer, thus setting the stage for a jury trial on the plaintiff’s Americans with Disabilities Act (ADA) claims.

I’ll explain why.

On November 16, 2019, the plaintiff suffered a seizure, leaving him unable to drive for six months. After he told the company, he received an accommodation, which appeared to be scuttled within a week or so.

Indeed, on November 26, the plaintiff’s hiring manager discussed the driving restriction with another supervisor, who asked the plaintiff’s general manager to tell her about the plaintiff and if he was “good or no.” The general manager provided mixed feedback.

Then, on or about December 6, the inquiring supervisor emailed HR for advice, mentioning the “medical restriction” and that the plaintiff had been “identified” for termination in connection with a company merger. Cherrypicking some negative feedback, the supervisor informed HR that the plaintiff “did not like to manage the details” and was “not the best at relationship building.” She also stated they had identified stronger employees to absorb his job responsibilities. HR concluded that a termination was “defendable.”

On December 18, the company fired the plaintiff. In the termination meeting, the company informed the plaintiff that he was being let go because the company did not have a particular role for him, and his sales numbers were lower than the three other employees in his position.

So, the plaintiff sued for violations of the ADA.

The lower court granted summary judgment to the employer.

The Eighth Circuit Court of Appeals was not so convinced. First, it concluded that the plaintiff’s claim could succeed given the tight ten-day gap between when the employer learned about the seizure and then identifying him for termination.

Second, the appellate court noted that only after learning that the disability may complicate the termination did the decisionmaking supervisor identify specific criticisms of the plaintiff’s performance to HR. And while the plaintiff conceded that he underperformed his peers, the company’s termination decision did not account for these performance assessments.

Employment lawyers and HR get this a lot. Managers need to manage (fancy that?), document, and (hopefully) correct underperformance. If that fails, terminate the underperformer.

Waiting until the employee complains about discrimination, suffers a serious health condition, or needs an accommodation for a disability makes it much more challenging to terminate based on earlier performance issues because it appears instead that the protected class/activity motivated the decision.


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