- A Philadelphia firefighter in training to become a paramedic was let go because he failed a test, not because of his disability, the 3rd U.S. Circuit Court of Appeals ruled (Frost v. City of Philadelphia, No. 19-2636 (3rd Cir., Jan. 6, 2021)).
- The plaintiff, who had impairments obtained during an earlier rescue, alleged the city engaged in disability discrimination when a physical therapist did not evaluate his physical capabilities in time for him to participate in the 2015 paramedic training academy class. The therapist did, however, clear him in time to participate in the 2016 class. After twice failing a patient protocol test, however, the city dismissed him from the academy in accordance with its policy and fired him. He sued, alleging disability discrimination and other claims.
- A district court dismissed his suit, finding that he was not qualified for the academy in 2015 because he had not received medical clearance. Furthermore, his termination was not pretext for discrimination or retaliation for a U.S. Equal Employment Opportunity Commission (EEOC) complaint filed more than nine months earlier, the court said; other individuals who failed the retest were fired, too. On appeal, the 3rd Circuit upheld the lower court's findings.
EEOC has explained that if two employees commit a similar offense, the employees can't be disciplined differently on the basis of a protected characteristic such as age, disability, race or national origin. However, employers generally are free to make adverse personnel decisions as long as the moves are motivated by legitimate, non-discriminatory reasons, courts say.
HR should make sure that disciplinary actions are applied consistently, experts previously told HR Dive. Moreover, employers should be aware that the timing of disciplinary actions has the potential to create legal problems. When disciplinary action closely follows protected activity — such as filing a complaint with the EEOC — employers will need to take special care to record the facts justifying the discipline, sources said.
Without thorough documentation of an adverse employment action, workers may be able to establish a prima facie case of retaliation based on timing alone because, in some circumstances, an unusually short period of time between an adverse employment action and protected activity can cause a complaint to survive summary judgment. A Philadelphia fitness instructor fired hours after telling her bosses she had filed a complaint with the EEOC recently was allowed to proceed with her claims of retaliation and bias, for example. On the other hand, one year between a complaint and firing didn't show bias, the 5th Circuit ruled, and the 11th Circuit said a termination that occurred eight months after an EEOC complaint wasn't retaliation. But there is no "bright line" rule for such timing.
Experts have recommended that training for managers and supervisors include an anti-retaliation component.