(Article originally published in New Hampshire Business Review, June 2009)
Recent publicity seems to suggest that state and federal disability discrimination claims are on the rise and that the trend will continue. The Americans with Disabilities Act ("ADA"), the federal law which prohibits discrimination on the basis of disability and requires employers to provide reasonable accommodation to enable otherwise qualified disabled individuals to perform their jobs, was amended effective January, 2009 in a manner which loosens the criteria for determining whether an individual is disabled. This is likely to increase the number of disability discrimination claims which ultimately make it to court.
A 2008 decision out of the 8th Circuit Court of Appeals in Willnerd v. First National Nebraska, Inc, decided under pre-Amendment law provides a window into an ADA claim and some idea of what not to do when faced with an employee who might have a disability. Jeffrey Willnerd was a 21 year employee of First National where he served as a loan officer and sales representative. He was fired in 2003. He suffered from a voice condition which limited his ability to speak in a normal tone, and his voice would periodically cut out completely. Willnerd argued that the bank fired him and ultimately failed to rehired him for several open positions because of his voice condition.
The bank argued that Willnerd was terminated as part of an economically motivated reduction in force and was not rehired because other candidates were better qualified. The trial court granted summary judgment in favor of First National, but the appellate court overturned the decision and reinstated Willnerd's right to a jury trial based on the following factors:
- Despite evidence of a continually worsening condition over many years, Willnerd never requested an accommodation; and according to his performance evaluations, his loan productivity and job performance did not suffer because of his disability.
- His coworkers were aware of his disability and at least one coworker testified at deposition that other employees made fun of Willnerd's voice.
- His supervisors were aware of the disability and admitted that they were concerned about how the public might react to it.
- A meeting was held at the branch where Willnerd worked and underperformance by the personal bankers was discussed. He was the only one given a new production quota described as "impossible to meet." Specifically, Willnerd was told to increase his production by 100% to an amount higher than that which the entire branch typically generated.
- At least one of the loan officers who remained was assigned Willnerd's administrative duties and had admittedly lower loan production.
Businesses must take proactive steps to minimize the risk of suits such as the one filed against First National. Take the time to train managers and employees about anti-discrimination and anti-harassment laws. Train your supervisors on how to give meaningful performance evaluations. Evaluations should be based on consistent and objective criteria. Make sure your job descriptions are up to date and clearly describe the job's essential functions in order to determine whether an employee or applicant is qualified for the job and to assist in the process of evaluation and accommodation. Finally, if you are considering a layoff or reduction in force, make certain that you have objective documentation of the decision-making process to justify the decisions.
Charla Bizios Stevens is a shareholder and director in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A.