Brian Ashe Quoted in Disability Compliance Bulletin

In “9th Circuit ruling a warning to employers to be specific in termination decisions,” in the August 31 issue of Disability Compliance Bulletin, Brian comments on the outcome of the recent 9th U.S. Circuit Court of Appeals case, Dark v. Curry County, which determined that the termination of a county road department employee with epilepsy, who crashed due on the job due to a seizure, may have been pretextual.

“Employers that waffle on the reason why they terminated an employee are likely to find themselves on the losing end of an ADA discrimination case…Employers can strengthen their legal position by doing all they can within reason to accommodate an employee with a disability, said Ashe, who specializes in employment litigation on behalf of employers.”

“One reason for that decision was the county gave conflicting reasons why it terminated the employee after he crashed a county vehicle while suffering an epileptic seizure,” Ashe said. “… The first reason it gave for terminating the employee was that he was a threat to himself and others. Then the county seems to have switched reasons and said that he was not able to perform the essential functions of his job….Employers want a clean shot to dispose of discrimination cases at summary judgment, but giving conflicting reasons for an employee's termination provides ammunition to a plaintiff's attorney, “Ashe said. "If you are a trial judge, you look at the reason why a decision to terminate has changed and will see a pattern of inconsistency. Employers need to give employees the benefit of the doubt, but also do a complete investigation before making a decision, Ashe said. “Do the spade work ahead of time and base your decision on the information and facts. Don't try to change the record later."

Ashe said while the decision was a strange take on the interactive process, the employer should have exhausted all possible options for reasonable accommodations before making a termination decision.  “The employee knew he had a 50 percent chance of having a seizure but he didn't say anything about it. The fact that he didn't say anything should be reason enough for him to be disciplined.”