Playing Offense in Defense of Disability Discrimination


By: Lisa Gorman

One of the biggest challenges facing California employers today is the underperforming employee with a disability. Under the Fair Employment and Housing Act (“FEHA”), a “disability” is any physical or mental impairment that limits a major life activity. Working is a major life activity, and most impairments limit our ability to work in some way.

While many employers are under the impression their employees must provide formal or written notice of a disability, that’s not the case. Taken to the extreme – familiar territory for California employment attorneys – every employee who complains they suffer from stress may effectively be a member of a “protected category” (an individual with a known disability). All too often, the employee “protected” by a disability is someone the employer has been considering terminating. And, employers often discover unacceptable performance deficiencies while accommodating a disabled employee with a leave of absence. By way of example, we are aware of a case where an employee took a disability leave of absence for surgery to remove a bunion on her foot. During the employee’s leave of absence, her supervisor discovered she had not been adequately performing prior to her leave. The supervisor, a cancer survivor whom the Company had accommodated numerous times during her treatment, had no intention of discriminating against the employee because she was disabled by a bunion. She did, however, terminate the employee because of the poor performance discovered during the leave period. Unfortunately, the employee’s personnel file did not support a performance-based termination, and as a result the ensuing disability discrimination case had high exposure.

In California, employment is presumably at-will, which means employers can terminate their employees at any time, for any reason (except an illegal one), or for no reason. Employment at-will arrangements are advantageous for employers, as they allow them to release employees without having to establish good cause. However, given the at-will employment arrangement, managers are not usually tasked with engaging in strict performance evaluations that might establish the good cause necessary to terminate an employee with an employment contract. In addition, most managers understand positive feedback tends to improve morale and productivity. As well, when preparing performance evaluations for employees we work with on a daily basis – and even become friendly with – it is easier and more comfortable to focus on achievements than deficiencies. Thus, personnel files often include evaluations that do not portray an accurate picture of an employee’s performance. When employers call seeking guidance on terminating underperforming employees with a disability, we often find the personnel file riddled with positive reviews and lacking any documentation of performance deficiencies or warnings.

From a legal perspective, there is no advantage to documenting an employee’s positive performance. While we do not underestimate the value of positive feedback, verbal accolades may improve morale and performance as effectively as written accolades. Negative performance reviews and warnings, on the other hand, have significantly more value – legally, that is – when written. With respect to the underperforming employee with a disability, we advise employers to comply with their legal obligations to engage in a good faith interactive process and accommodate the disability. We also advise employers to simultaneously document performance deficiencies. The more credible an employer’s showing a termination is due to legitimate reasons unrelated to a disability, the less exposure it faces on a discrimination claim. Documentation of performance problems that predate notice of the disability render the argument that a termination is performance-based significantly more credible. In other words, properly documenting poor performance and providing candid performance evaluations – playing offense – is the best defense when it comes to disability discrimination claims.