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EMPLOYER CLIENT ALERT: November 2008 AVOIDING LIABILITY FOR DISABILITY DISCRIMINATION: The opinion in a recent employment law case alleging pregnancy discrimination, Bispo v. McKesson Information Solutions Corp., underscored the importance of (1) responding neutrally to an Employee’s news of disability; (2) treating all employees respectfully and reasonably; and (3) documenting poor performance of all employees. In Bispo, the Plaintiff was an at-will employee whose job it was to provide billing and collection services to medical service providers and to manage a like team of employees who performed the same services. A month after she was assigned to work on the account of an important client, Plaintiff learned she was pregnant. She alleged that when she told her supervisor that she was pregnant, he scowled at her, and thereafter was cold and hostile toward her. Despite her favorable evaluations, the Employer fired Plaintiff and two other Employees (a man and a woman) who worked on the account when part of the account was lost due in part to substandard service provided by Plaintiff and herteam. The Plaintiff filed suit alleging that the Employer really fired her due to her pregnancy. The supervisor contradicted Plaintiff’s testimony that he scowled at her and treated her in a hostile manner. Notwithstanding, Plaintiff’s testimony was sufficient to establish her prima facie case. The burden of proof then shifted to the Employer to submit sufficient evidence of a legitimate, non-discriminatory reason for the termination. The Plaintiff’s non-responsiveness to questions from the client and her submission of incomplete, incomprehensible reports to the client were well documented by the Employer. The Employer also introduced evidence that 85% of its workforce was made up of women and that it had a long history of treating pregnant employees and those with children fairly offering flexibility and other accommodations. The burden then shifted back to the Plaintiff to show that the reason proffered by her Employer was unworthy of belief, or mere pretext (a disguise for discriminatory motive). The Plaintiff was unable to meet that burden. The dismissal of Plaintiff’s case by the Trial court was affirmed by the Appellate Division. Employers Beware: Be neutral upon hearing of a disability; take care
to treat all Employees with decency; and document, document, document
poor performance of all Employees. If you have any questions about any of the issues raised in this
Employer Alert, or any employment and labor issue or concern, please
call Thomas Ryan, Esq. or Linda Day, Esq. of Laddey, Clark & Ryan’s
Employment and Labor Practice Group at (973) 729-1880. If you do not
wish to receive updates concerning developments in the law which could
affect your business in the future, please indicate your preference
below, and we will take you off our e-mail list.The Employment and Labor
Practice Group The Employment and Labor Practice Group
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