Employers often are reluctant to take adverse actions against poorly performing employees with a history of medical conditions due to the cost and risk involved in litigation (even though no federal, state or local law is intended to protect deficient job performance).   In an instance where an employer decided to discharge a worker whose job performance was not satisfactory, that decision was upheld in Corbin v. Jackson Hospital & Clinic, Inc. Plaintiff was a “team leader” in the Hospital’s IT department. The Plaintiff’s manager and co-workers were well-aware of diagnosed conditions that caused sleepiness and memory loss. Concerned about failing performance of the IT Department, the Hospital engaged an outside consultant to perform a review. When the review revealed significant shortcomings and deficiencies, the Hospital terminated Plaintiff’s employment and eliminated his position. His disability discrimination claims ultimately were rejected because Plaintiff was unable to demonstrate that the executives who made the termination decision had actual knowledge of his medical conditions (simply held, “a decision-maker who lacks actual knowledge of the employee’s disability cannot fire the employee ‘because of’ that disability.”). Further, the Hospital established that performance issues solely formed the basis for the termination decision.

Employers should not lose sight of the “Cat’s Paw” theory of imputed knowledge, i.e., even though a decision-maker does not know of an employee’s protected characteristic, like disabilities in this case, the decision-maker relies on someone’s opinion who was aware. Thus, as a best practice, the safest course remains acting upon documented, job-related factual findings.