It’s All About Perceptions

Generally speaking, if my boss decides that my job performance is unacceptable, I can be fired for poor performance. Pretty cut and dry. But what if my poor performance is outside of my control because I have some kind of disability?

The Americans with Disabilities Act (“ADA”) prohibits discrimination against an employee because of their disability. The company is obligated to engage in what is called the “interactive dialog process” to see if there is a way to make a “reasonable accommodation” to the job so that the employee can still be successful in that job despite their disability.

Where things can get dicey is when the employer thinks or suspects there might be some kind of disability that is interfering with the job performance, but the employee doesn’t volunteer to confirm that suspicion.

Best advice? Keep your suspicions and thoughts to yourself, and focus solely upon job performance. Because if you speak your thoughts, whether or not I actually have the disability that you think I have, the mere fact that you believe me to be disabled obligates you to now engage in an interactive dialog to seek a reasonable accommodation for my disability. Whether that disability is real, or merely perceived.

Being Both Wrong and Evil

Most of you know that employees are generally “at will”, meaning you can hire/fire an employee at your discretion. Except, of course, you cannot fire someone “because” they were too old, too pregnant, too… you get the idea, in a protected class. Likewise, you generally can’t fire someone for exercising their Constitutional right of free speech on their own time. This includes their right to support any political candidate of their liking.

If you fire me simply because I support a political candidate that you don’t like, I can sue you for retaliation.

IS it wrong, however, for you to fire me because you thought I supported a particular candidate, when, in fact, I didn’t support that candidate at all? Is that still unlawful retaliation?

Yep, you guessed it — yes, oh yes it can be. The retaliation in your blackened heart alone was apparently the problem, according to this one court. That you could also be sorely mistaken just makes you both wrong and evil.

This is not the consensus view across the country, mind you. But it should give you pause. If you’re going to discharge an otherwise good employee over something that has nothing to do with the workplace or job performance, whether or not you could be sued for wrongful retaliation shouldn’t be your threshold. Whether you’re making a bad business decision in the heat of the moment should be your threshold.