Is it OK to consider pre-accommodation performance in firing?

A Wisconsin woman was hired as a counselor with a full year of probation for her employer to judge her job performance. Based on mixed evaluations, her supervisor recommended against retaining the woman beyond that first year.

The employee then explained to her supervisor that she has a hearing impairment that affects performance and she made a formal request for an accommodation. Her supervisor then gave her a new list of performance concerns, and a short while later her employment was terminated.

The former employee has since filed a lawsuit that claims her firing was based on pre-accommodation performance issues.

A court denied her former employer’s request for a summary judgment, noting that it had concerns that the woman had less than six weeks to improve her job performance after the accommodation.

When she applied for a job at the Wisconsin Department of Workforce Development’s Division of Vocational Rehabilitation, she disclosed that she has a hearing disability and that she was applying based on recommendations of hearing-disability counselors.

According to a report, her first evaluation was at the three-month mark indicated she was meeting goals except that she had a low caseload. At the six-month mark, she received a similar evaluation, but at the nine-month mark her supervisor indicated that the woman should not be retained beyond the probation period.

The question a jury might soon consider is whether the employer can consider pre-accommodation performance in a decision to fire an employee.

The Milwaukee employment law firm of Alan C. Olson & Associates, s.c. can help you protect your rights in the workplace.


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