Dive Brief:

• A Montana worker was fired for insubordination, not because of his disability, the 9th U.S. Circuit Court of Appeals has ruled (Mickealson v. Cummins, Inc., No. 18-35827 (9th Cir., Nov. 14, 2019)).
• Ross Mickealson sued his former employer, Cummins, Inc., alleging that it fired him "because he had a disability, requested accommodations, had an upcoming surgery or filed a complaint against his supervisor," in violation of the Americans with Disabilities Act (ADA). A district court, however, granted summary judgment for the employer, and the 9th Circuit affirmed.
• Mickealson's failure to communicate with his supervisor as instructed qualified as insubordination that provided the employer with a legitimate business reason to terminate his employment, the appeals court said; the plaintiff was unable to show that Cummins applied its policy "unequally, arbitrarily or capriciously" or that its stated reason for his termination was pretext for discrimination.

Dive Insight:

Employers can offer a solid defense to claims of bias, harassment, discrimination or retaliation when they can appropriately justify an adverse employment action. Lowe's, for example, recently defeated a worker's allegations of age and disability bias because it was able to show legitimate business reasons for the employee's transfer to a new store and investigations into his conduct. The U.S. Forest Service similarly recently prevailed in a lawsuit because it was able to show that a worker's reassignment was the result of budget cuts, not gender and age bias.

But as the Mickealson court discussed, unequal treatment and inconsistent discipline can create evidence of bias. The retaliation claims of an African American lab worker were allowed to move forward, in part, because of evidence that other, similar co-workers were treated better.

HR needs to ensure policies are applied consistently, and that employees who violate the policies experience the same disciplinary actions. A court found retaliation, for example, when an Asian-American postal worker found asleep on the job was fired while her white co-workers who committed similar infractions were not. And Walmart recently defeated a former employee's age bias claim after demonstrating it had held multiple employees to the same standard.

While protected activity such as harassment or discrimination complaints doesn't insulate employees from discipline, experts say HR may want to carefully review plans to discipline an employee who recently engaged in such activity to be sure such actions don't suggesting bias or retaliation.