We recently wrote a note which addressed the difficult situation businesses often face in dealing with an employee, who is a member of a protected class, but who has exhibited poor job performance. The note concluded that being a member of a protected class is not a guarantee of continued employment – it just requires that an employer not act in a manner which gives rise to an “inference of discriminatory intent” in either disciplining or terminating the employee. We recommended that the employer seek advice and guidance of counsel to assure that proper procedures are followed and proper documentation prepared and maintained by the employer.
Two recent cases decided by United States District Courts in New York reaffirm the advice. In one case, a Court dismissed a suit by an employee alleging his termination was improperly based upon race, ethnicity, national origin, and age in violation of Federal law. The employer had suspended the worker and charged him with “workplace violence.” The facts show that he had swung a chainsaw at two co-workers. An arbitrator found that just cause existed to suspend and then terminate the employee. The employer adopted the finding of the arbitrator and terminated the employment. The District Court found that although the employee was a member of a protected class, he could not show that the employee acted with a discriminatory intent and dismissed the suit brought by the employee.
In a second case, the US Department of Transportation found that an employee who operated commercial vehicles was medically unfit to safely operate a commercial motor vehicle. The DOT revoked his medical certification, which is required to operate commercial vehicles. His employment was terminated and he brought an action under the Americans with Disabilities Act (ADA). The Court granted the employers motion to dismiss the lawsuit, finding that the employee failed to show that he was medically fit for his employment. The Court found that without the required medical certification, the employee could not establish that he was qualified to perform the duties of the job and thus unable to maintain an ADA discrimination action.
These cases show that being a member of a protected class does not create a right to continued employment. However, an employer must seek the advice of counsel to carefully assess a particular situation before taking the drastic step of terminating an employment. There are many facts and circumstances which must be carefully analyzed before employer action is recommended.
Cases: Ogalo v NY Thruway, 6:10-CV-01163 (N.D.N.Y. Sept 26, 2013); Wilkie v Golub Corp, 1:11-civ-1086 (N.D.N.Y. Sept 14, 2013)