Did an oral protest about disability discrimination hold up in court?
“I thought I asked you to have that report on my desk first thing this morning,” Supervisor Nancy Marvin said to Dave Carson.
“I'm sorry,” Dave replied. “When we discussed the report last week, I may have misheard the exact deadline. You know I don’t always hear everything the first time,” he added, pointing to his hearing aid.
Nancy started to respond, but Dave went on. “I'll finish up the report as soon as possible, but we’ve talked before about how I really need oral instructions followed up in writing because of my hearing problem.”
“Don’t try to put the blame for this on me,” Nancy snapped. “How am I supposed to work with you if you can’t hear?”
Dave stared at her for a long moment. “Aren’t you being discriminatory?” he asked.
“Excuse me?” Nancy demanded. She paused. “All right, I’m not going to argue about what you did or didn’t hear. Let’s just take a moment.”
She took a deep breath, then said, more calmly, “The priority is getting this report done today – can you get it to me by noon?"
"Yes," Dave answered. "I'll give it to you by noon."
Nancy proceeded to write a negative evaluation of Dave’s performance and three days later terminated him.
Dave sued the company for disability discrimination and retaliation. Did he win?
Yes, Dave won his lawsuit.
A federal appeals court held that supervisor Nancy retaliated against Dave because he made an informal complaint about her discriminatory comment regarding his disability. Yes, Dave’s short sentence –
“Aren’t you being discriminatory?” – amounted to an informal bias complaint, the court ruled. A complaint doesn’t have to be long or written down.
When the supervisor whipped up a negative evaluation and fired Dave on the heels of this complaint, it pointed to a retaliatory intent, the court noted.
Actions and words speak loudly
The supervisor may or may not have had reason to fire Dave for his work performance, but her bias against his hearing disability came through loud and clear. The supervisor:
• Failed to follow the agreed-upon accommodation by not following up her verbal instructions to Dave in writing.
• Commented disparagingly on his disability.
• Wrote a negative evaluation of him immediately after their argument.
• Terminated him just three days after he challenged her comment.