August 13, 2020

Good Documentation Defeats 5 Claims in 1!

When an employee’s company was taken over, she was not offered a job. In fact, she was not offered any one of 11 jobs for which she applied. Guess what she did. She sued.  She alleged she did not get a job offer because she: (1) used a wheelchair in the workplace; (2) used FMLA leave; (3) was asthmatic;  (4) was age 59; and (5) was retaliated against after her attorney sent a letter “threatening legal action.”  What she did not reveal was her prior performance appraisals were not particularly good!

In reviewing the case, the court noted her performance had declined over the years. She received worse ratings in the second half of her time with the company, than the first half. And two of the last five reviews included “IR” ratings indicating, “Improvement Required.” As a result, on May 26th the U.S. Court of Appeals for the 6th Circuit (covering MI, OH, KY & TN) dismissed all five claims.

Tip 1: This company also invited applicants to self-identify their disability status.  Some HR staff had access to that information but the recruiters and hiring managers did not. That separation created a firewall that protected the recruiters and hiring managers. So, managers – when HR does not give you certain information about employees or applicants, remember this case. It’s to keep you safe. You cannot discriminate against what you don’t know!

Tip 2: I give this employee credit. She was tenacious! She lost at arbitration. She lost in district court. And, she lost this case.  Imagine the time and cost to the employer to ultimately win.  If your company does not have Employment Practices Liability Insurance (EPLI), you may want to reach out to some carriers and get some quotes. (No, I do not sell it).