When “Performance Concerns” Mask Disability Discrimination
Employers may hold employees with disabilities to legitimate, job-related performance standards. They can provide corrective feedback and discipline employees who fail to perform the essential duties of their positions.
Problems may arise, however, when criticism begins after a disability disclosure, standards are enforced inconsistently, or an employer ignores a request for reasonable accommodation. The timing of events, treatment of coworkers, and reasons given for disciplinary action can help reveal whether the concerns are genuine or being used to conceal discrimination.
When Is Performance Management Legitimate?
Employers may define a position’s essential functions, set reasonable expectations, evaluate an employee’s work, and address performance deficiencies.
A disability does not automatically excuse missed deadlines, incomplete assignments, misconduct, or failure to perform essential duties. Under the Americans with Disabilities Act (ADA), the key question is whether the employee can perform those duties with or without a reasonable accommodation.
Employers also do not ordinarily have to withdraw discipline for problems that occurred before an accommodation request. Once an employee requests an accommodation, though, the employer may need to consider whether a workplace adjustment would help the employee meet expectations going forward.
What Signs May Point to Disability Discrimination?
One negative review does not prove disability discrimination. A broader pattern may raise legitimate questions about the employer’s stated reason. Warning signs can include:
- Strong reviews followed by sudden criticism after a disability disclosure
- Vague expectations or performance standards that keep changing
- Harsher scrutiny than coworkers receive for similar conduct
- Comments questioning the employee’s health, reliability, or ability to continue working
- Removal from assignments, training, or advancement opportunities
- Pressure to resign, retire, or take medical leave
- A performance improvement plan issued soon after an accommodation request
For example, an employee receives strong reviews for two years, then requests intermittent leave for a chronic condition. Within a month, the employer places the employee on a performance improvement plan for missed deadlines, while a coworker with a similar record goes undisciplined. These facts would not prove discrimination on their own, but the timing and unequal treatment could cast doubt on the employer’s stated reason.
What Happens After an Employee Requests an Accommodation?
A reasonable accommodation is a workplace change that allows a qualified employee with a disability to perform essential functions or have equal access to employment opportunities. Depending on the employee and the job, it could involve modified equipment, an adjusted schedule, leave for treatment, telework, or changes to nonessential duties.
When the right accommodation is not obvious, the employer and employee should engage in an interactive process. This involves discussing the employee’s limitations, job duties, and possible solutions.
An employer’s response can be telling. Concerns may arise if the employer ignores the request, causes an unnecessary delay, demands medical information unrelated to the workplace limitation, or refuses to consider alternatives. An employer’s decision to impose discipline without examining whether an accommodation could prevent similar problems going forward may also justify closer review.
The employer does not always have to provide the employee’s preferred option. It may choose another accommodation if that option is effective and does not cause an undue hardship. An employer also is not generally required to eliminate essential job functions.
How Do Protections Differ for Federal and Private Employees?
The ADA generally covers private employers with at least 15 employees. State or local laws may apply to smaller employers or provide broader protection.
Federal employees bring disability discrimination and accommodation claims under Section 501 of the Rehabilitation Act. Many of the underlying standards mirror the ADA, but federal employees must pursue claims through a separate process that also applies to other forms of federal employment discrimination.
A federal employee generally must contact an agency EEO counselor within 45 calendar days of the alleged discriminatory action. Private-sector employees typically have 180 days to file an EEOC charge, although that period may extend to 300 days when an applicable state or local law also prohibits the conduct.
What Records Can Help Show What Happened?
Employees who question a performance-based action should preserve records from before and after the employer learned about the disability. Useful documentation may include:
- Performance reviews, disciplinary notices, and improvement plans
- Accommodation requests and the employer’s responses
- Relevant medical documentation
- Emails about assignments, attendance, or performance
- Records showing how similarly situated coworkers without disabilities were treated for comparable conduct or performance issues
- A dated account of important conversations and decisions
Employees should respond to disputed allegations professionally and in writing. A response can correct inaccurate statements, provide context, and document an unresolved accommodation request. Records created at the time are usually more useful than attempting to reconstruct events months later.
Look Beyond the Performance Label
Not every negative review or disciplinary action involving an employee with a disability is discriminatory. Still, closer review may be warranted when criticism begins after a disclosure, an accommodation request goes unanswered, expectations suddenly change, or coworkers receive more favorable treatment.
Because filing periods can be short, employees should preserve relevant records and promptly seek guidance on the procedures that apply in their workplace.
