Protected Class? You Can Still Fire Him, But Carefully

Protected Class? You Can Still Fire Him, But Carefully National Photo Company, via Wikimedia Commons

Much has been written about the rights of an employee who engages in protected activity. But is this person “bulletproof”?

As Sindy Warren explains on Warren & Associates’ Our Blog, while employers need to be careful when disciplining these employees, that doesn’t mean they should refrain from doing so if the circumstances warrant it.

She cites Pearlman v. Pritzker, in which deaf employee Michael Pearlman repeatedly complained about the quality of the interpreters that were provided. At the same time, his coworkers reported problems with his conduct, describing it as intimidating and offensive. Despite warnings and an opportunity to improve, the behavior continued and he was eventually terminated.

In his lawsuit, Warren says Pearlman alleged he was terminated because of his complaints about the interpreters, invoking the retaliation provision of the Americans with Disabilities Act. However, she says the court held and the U.S. Court of Appeals for the Fourth Circuit affirmed that it was his conduct that led to the firing, relying heavily on the employer’s written documentation of the decision.

Warren says if you are planning an adverse action, especially against someone who recently engaged in protected activity, be sure to articulate and keep a record of the legitimate rationale for the action.

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