How to Avoid Prohibited Discrimination?
Some potential discrimination claims languish undiscovered until shortly before or after a discharge decision is implemented.
Disability discrimination claims, often fall within this category.
Many physical or mental disabilities are never formally disclosed but are informal subjects of discussion in the workplace.
While no formal declaration of handicap is made, accommodation requested, or limitations identified, employees can assert with relative ease that a physical or mental condition was in fact the cause of the discharge.
To prevail in such cases, the employee must present more than allegations of a restricted ability to perform a class of jobs. See Huge v GMC, No 01-4057, 2003 US App LEXIS 6263 (6th Cir Mar 26, 2003) (although plaintiff asserted that her depression limited her ability to work, court concluded that her statements did not show that plaintiff was significantly restricted in her ability to perform either class or broad range of jobs in variety of classes as compared to average person).
A disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee’s disability. See Green v Burton Rubber Processing, Inc, No 00-5475, 2002 US App LEXIS 2959 (6th Cir Feb 21, 2002) (mentally ill employee failed to establish that he was qualified under ADA where he was fired for telling health care workers that he had thoughts of killing his supervisors); Petzold v Borman’s, Inc, 241 Mich App 707, 617 NW2d 394 (2000) (plaintiff failed to establish prima facie case of handicap discrimination because his Tourette’s syndrome, which caused him to utter obscenities in presence of customers, children, and other employees on daily basis, was not unrelated to his ability to perform his job as grocery bagger).
FAMILY MEDICAL LEAVE ACT!
An employer may encounter problems under the FMLA if it discharges an employee for attendance infractions or excessive absenteeism and the employee is covered under the FMLA.
Supervisory resistance and coworker resentment can work in combination or alone as motivators for intolerant and premature discipline and discharge for attendance infractions. The employer should not overlook the possibility that supervisors and co-employees may be reacting negatively to an employee’s exercise of his or her FMLA rights.
To avoid these unforeseen and potentially catastrophic discoveries, employers should include in their internal self-assessment protocol a screening for information regarding physical or mental conditions that may later surface as discrimination claims. Like other potential discrimination claims, the employer should take adequate steps to investigate potential disability or FMLA claims and inquire of supervisors to be sure that a factual background exists to dispel such claims if they should emerge later.
The Equal Employment Opportunity Commission (EEOC) advocates a best practices approach to avoid employee claims of illegal discrimination. See Report of the Equal Employment Opportunity Commission Task Force: Best Practices of Private Sector Employers (Dec 1997) (Best Practices Report).
The Best Practices Report defines a best practice, in part, as one that “promotes equal employment opportunity and addresses one or more barriers that adversely affect equal employment opportunity.” Id. at 27.
When possible, it is always wise to study and compare successful approaches other employers have implemented in similar circumstances. The Best Practices Report is a good resource for that purpose.