THE MAGAZINE

See You in Court

By Diana Maier

Three years ago, a company began to have problems with its most successful manager, we’ll call her Mary. Though Mary had always been productive, good with clients, and well liked by her staff, her behavior suddenly seemed to change. She missed deadlines, was late to work, and lost the sharpness that made her so successful. Her supervisor placed her on probation, and then instituted a performance improvement plan.         

When nothing changed, the supervisor asked Mary what was going on. Mary said that she was suffering from a debilitating back injury and requested 12 weeks leave under the federal Family and Medical Leave Act (FMLA). The company approved the leave. Two months into Mary’s leave, however, her supervisor began to realize how much Mary’s performance had declined over the last six months.

Sales projections were way off, her direct reports were complaining about her, and the company had lost a major account due to her negligence in handling several projects. In addition, the supervisor began to realize that the division Mary managed was suffering without a manager on the job. The supervisor, feeling he had no choice, fired Mary two and a half months into her leave.

Mary sued the company and the supervisor for disability discrimination, violation of the FMLA, and retaliation. The supervisor was stunned. He had never considered Mary to be disabled and certainly had not fired her for that reason. Still, corporate counsel informed the supervisor that the case was likely to proceed.

As this real-life case illustrates, all supervisors in a company need to be well versed in the many ways that discrimination cases can arise. In this case, the employee could argue that she was discriminated against on the basis of her disability due to her termination alone and the fact that the company was aware of her disabled status. She would also have a successful cause of action for violation of California’s Family and Medical Leave Act for termination while on protected leave.

Other terminations make prima facie cases of discrimination where the burden shifts to the employer to prove it had legitimate reasons for the firing of the employee. If Mary, for example, had been replaced with a male worker, particularly one who was younger than she, and if Mary was 40 or older at the time, she would have a prima facie case of sex and age discrimination.

Mary’s attorneys will, if they are competent, list these causes of action even if there is no direct evidence of such discrimination. To do otherwise could be malpractice, because the law is in essence stating that such terminations should be suspect. In other words, a plaintiff’s attorney deems certain behaviors in the workplace appropriate if they are directed against a white, heterosexual, able-bodied, young male, but potentially litigious if they are directed against a protected group and fulfill prima facie requirements.

This article examines what types of behaviors can land a company in court, how to avoid these behaviors, and the personality traits that might lead certain employees to sue while others do not.

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