Even when employee performance may merit termination, employers must review and curtail their reasons for taking adverse employment action to ensure compliance with anti-discrimination laws. In Michaels v. City of McPherson, a jury awarded a terminated police officer close to $1 million because the City’s list of reasons for the termination included reference to prior performance issues related to an ongoing medical condition in violation of the Americans with Disabilities Act (ADA).
The employee had been reprimanded for falling asleep and received a two-day suspension and six-months of probation. The employee asserted that he was later diagnosed with severe sleep apnea; a breathing disorder which interferes with sleep and may cause excessive daytime sleepiness. Following his diagnosis he began taking medication and started using a medical device to address the apnea and returned to normal duty.
Over one year later the employee was terminated based on a report that included a list of serious performance problems such as insubordination and arguing with superiors. However, the report also included a specific reference to the March 2011 incident in which Michaels fell asleep on duty. The jury agreed that the employee’s termination violated the ADA because it was in part was based on his medical condition and awarded $800,000 to cover past and future lost wages, and another $120,000 for emotional distress.
This case cautions against employers “throwing the book” at sub-standard employees. Once a performance issue has been reported the employer’s protocols must control. Best practices strongly discourage employers from holding grudges: if an infraction has been dealt with and the punishment was not sufficient, the employer should update its protocols and is best advised not to single out any particular employee for unique treatment however appropriate further action may in fact be. In this case, the employer may have never updated its personnel file to reflect the fact that the employee could not be punished for an ongoing medical condition and may require reasonable accommodation. We note, however the same latent exposure exists where an employee engages in any protected activity, such as leave or filing grievances, or belongs to a protected class. If a prior infraction did not merit termination at the time, and is later revisited to justify another adverse employment action against a minority employee or following protected activity, the employer is creating fertile ground for regulators and jurors to reject any other valid justification as pretext.
If you have questions or concerns as to how to minimize risks or address employee issues involving employee discipline, please contact Ohrenstein & Brown at (888) 260-6821.