Dive Brief:

• A dental practice manager with a long history of positive performance reviews survived a motion for summary judgment on her Americans with Disabilities Act (ADA) claim (Hardcastle v. Center For Family Health, No. 17-12491 (E.D. Mich. March 28, 2019)).
• The employee had received excellent reviews throughout her 11-year employment, including one less than two months before her termination; the termination came just over a week after she officially informed HR that she had been diagnosed with a neurological condition. The condition required time off for medical appointments and caused vision problems and headaches. 
• Allowing the lawsuit to continue, the court said there was a genuine dispute of material fact as to whether the plaintiff's impairment met the ADA's definition of "disability," as well as whether the employer's proffered reason for termination — that the plaintiff had made racist and homophobic comments — was merely pretext for unlawful discrimination.

Dive Insight:

In the event of a contentious termination, documentation can make or break an employer's case. While a complete absence of documentation supporting the termination decision is obviously problematic, having vague or sarcastic statements on record also creates problems for employers. Employers should always remember that juries are made up of people who are, or who have been, employees, Allison West, principal at Employment Practices Specialists, told attendees at a recent conference.

Additionally, employers must be sensitive to the timing of adverse employment decisions such as discipline or termination. Even if a decision is not based on a protected condition or activity, a close temporal link increases the likelihood that the employee — and possibly a judge or jury — will believe there is an illegal causal connection. Philip K. Miles III, a shareholder at McQuaide Blasko, told HR Dive in a previous interview that timing alone can establish a prima facie case of retaliation.

However, if there is a valid reason for a decision and strong documentation supporting it, employers should not hesitate to act, experts say. This is particularly true if there's a compelling safety issue at stake. Last year, for example, Southwest Airlines prevailed over an employee who was fired for saying he wanted to bring a gun to work — not because, as he claimed, he had taken Family and Medical Leave Act leave.