The Road To Discrimination May Be Paved With Good Intentions 

Published April 1, 2008

 

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

 

A good manager treats employees with consideration and willingly provides resources to help them do their jobs.  But it's possible for a manager to overstep his/her bounds and provide too much "help."  If you provide unsolicited help to an employee with medical issues, you may be violating the Americans with Disabilities Act (ADA).  By regarding the employee as disabled, you automatically afford them protection under the ADA…whether or not they actually are disabled.

 

ACTUAL SYMPTOMS, PERCEIVED LIMITATIONS

When Wes Creighton was diagnosed with Parkinson's disease, his manager, Nathan Fenster, couldn't help but feel sorry for him. 

 

Creighton's condition soon showed up on the job.  The employee told his manager he was having trouble reading his computer screen and asked for a larger one.  Then, Fenster noticed that Creighton's handwriting was getting harder to read; the manager's heart sank when Creighton left a meeting due to noticeable tremors in his right hand. 

 

Creighton took three days off as his physician ran several tests and adjusted his medications.  When the tremors had improved, he was released to work without any restrictions.  But Fenster felt the employee wasn't ready to handle a full-time schedule just yet, so he restricted Creighton to half days for his first two weeks back.  During this time, Fenster e-mailed HR: "Wes Creighton is being given special accommodations, in accordance with the ADA."

 

Creighton noticed that Fenster seemed to be treating him with kid gloves.  Creighton's major accounts were taken away because Fenster felt they'd be "too much to handle," and a part-time clerk was assigned to help Creighton on all writing tasks.

 

When a new computer system was installed a month later, Fenster told Creighton that he didn't need to be trained on the new system.  "Inputting the data into this new system will just be too difficult for you with your hand tremors and problems seeing the screen," Fenster explained.  "You know how important accuracy is!"

 

"Have you found errors in my work lately?" asked Creighton, alarmed.  "I mean, yes, my hand has a minor tremor from time to time, and my eyes often do get tired by the end of the day, but I've been double-checking my work…"

 

"No, no, the quality of your work so far is okay," Fenster assured him.  "I'm just trying to make life easier for you."

 

A month later, Creighton was stunned to learn that he was being let go due to a reduction-in-force.  He was further dismayed after learning from co-workers that, minutes later, a newly hired employee was promoted to his position.

 

Creighton filed an ADA lawsuit.  A court agreed that Fenster regarded Creighton as disabled and awarded him $197,783 in back pay and compensatory and punitive damages.

 

WHERE THE MANAGER WENT WRONG

Minimize your risk of unintentionally violating the ADA by avoiding the mistakes made by Fenster.

• Don't make assumptions about an employee's abilities or disabilities.    Actual performance — not fears about what might happen — is the most important determinant of the employee's ability to do the job.
• Don't designate an employee as ADA-protected without conferring with HR, which should get input from the employee's doctor.  (And beware of what you put in writing!  Fenster's e-mail to HR served as irrefutable proof of his perception that Creighton was disabled.)
• Don't preemptively impose special accommodations on an employee who has not requested them.  Fenster believed he was rightfully helping Creighton by temporarily reducing his schedule and then lessening his workload, but those actions only helped to prove he violated the ADA.
• Don't discharge under the guise of a reduction-in-force or other pretense.  Creighton won $10,000 in punitive damages alone because the court found the "discriminatory plan" to fire him was developed and carried out "with reckless indifference" to his ADA rights.

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