- An auto supplier’s reasoning for choosing not to transfer or rehire a worker after an acquisition was not a coverup for age or disability discrimination, the 6th U.S. Circuit Court of Appeals ruled (Brown v. Kelsey-Hayes Company, et al., No. 19-1040 (6th Cir. May 26, 2020)).
- Darlene Brown worked as an administrative assistant until an auto supplier acquired her employer, Kelsey-Hayes Company, eliminated her position and declined to transfer or rehire her. Brown argued the company let her go due to her age and her asthma, which sometimes required her to use oxygen, a wheelchair and intermittent Family and Medical Leave Act (FMLA) leave. Of the 11 positions she applied for, 10 were filled with applicants younger than Brown. Nine did not have disabilities; the court noted it did not know the status of the two other hires. The company supported its decision by pointing to the mixed reviews Brown’s supervisors gave her through its employee development process.
- The 6th Circuit affirmed a lower court’s ruling for summary judgment to Kelsey-Hayes. In response to Brown’s allegations that a talent acquisition manager declined to interview her because of her knowledge of Brown’s disabilities, the court noted that "mere knowledge of a disability is not enough to show pretext."
Evidence of performance issues often helps employers defend adverse employment actions taken against applicants and workers with disabilities.
An Indiana ice rink was able to show it fired a Zamboni operator because of his attitude and performance issues, rather than his disability that resulted from an on-the-job injury. The 7th Circuit noted his tenure included customer complaints and an inability to complete tasks on time. Similarly, the 9th Circuit ruled a Montana employer fired a worker because of his insubordination, not his disability or requested accommodations.
Of course, evidence of positive performance may help an employee succeed in proving disability-based discrimination. A dental practice manager who had generated a log of positive performance reviews survived a motion for summary judgment on the disability discrimination claims she made after she was terminated one week after disclosing her neurological condition to HR.
The importance of documentation is made clear by such cases. Poor documentation can do more harm than good, however, Allison West, principal at Employment Practices Specialists, previously told attendees at a conference. Ambiguous language, absolute expressions and snark can create potential pitfalls.