You Can't Fire Me! I'm Disabled!

27 January 2014 Labor & Employment Law Perspectives Blog

For years, courts have often ruled that employees cannot use last-minute declarations of disabilities to protect themselves from the potential consequences of their actions or avoid getting fired. But a recent decision suggests that employers should still take such statements seriously.

Consider this: A night-shift employee repeatedly fell asleep at work. The employer gave her repeated warnings, leading up to a suspension. Despite the discipline, she continued to sleep on the job. As a result, her manager suspended her indefinitely pending further investigation and told her that she could be terminated. A day later, the Human Resources Manager recommended that the employee be terminated, and twelve days after the recommendation, the employer followed through and informed the employee of the termination.

So far, this sounds like a run-of-the-mill performance termination. But here comes the wrinkle: After the employee kept falling asleep, and after the employer issued the final suspension and told her about possible termination, and after the HR manager recommended termination, the employee told the employer that she may have had a disability that was keeping her from staying awake. After receiving this notice, the employer went ahead with the termination.

It goes without saying that an employer cannot be held liable for disability discrimination if it is not aware of the disability. Here, the employer argued that it had no idea about the employee’s disability: (1) when the employee kept falling asleep on the job; (2) when it issued the discipline; and (3) when the HR manager recommended the termination. According to the employer then, it could not have been discriminating on the basis of the employee’s disability because it did not know about it at the time that it considered whether to fire her.

Not so fast, according to the Seventh Circuit Court of Appeals. A termination does not occur, according to the Court, until:

  1. The employer makes a “final, ultimate, non-tentative” decision; and
  2. The employee receives “unequivocal notice” of the decision. Because the employer learned about the disability before making the final decision, and before telling the employee, the court ruled that her ADA discrimination claim could go forward.

So what does this all mean? According to the ruling, even if an employer decides to terminate an employee for performance issues without any knowledge of a disability but then learns about the disability before telling the employee, the employer may need to reevaluate its decision. At the very least, the decision suggests that employers must at least consider whether the alleged disability is linked to the performance issues. Otherwise, the employer faces the risk of an ADA claim and the possibility of a sympathetic plaintiff.

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