Spitz, The Employee's Law Firm Spitz, The Employee’s Law Firm 2026-09-10T16:00:18Z https://www.calltherightattorney.com/feed/atom/ WordPress /wp-content/uploads/sites/1604777/2020/06/cropped-site-identity-1-32x32.png by Spitz, The Employee's Law Firm <![CDATA[Is There A Limit On Race Discrimination Damages?]]> https://www.calltherightattorney.com/?p=263452 2026-09-09T17:30:33Z 2026-09-10T16:00:18Z Black employee at an office desk reviewing a large race discrimination jury verdict and damages award.

Why A $20 Million Jury Verdict Became Just $2 Million 

You see the headline: Jury awards employee $20 million for race discrimination.  Wow. Twenty million dollars. Generational money. Time to pick the color of the Lamborghini.  Not so fast.  After the verdict, a trial court can reduce the award. An appellate court may reverse all or part of the employment discrimination award. And after all of that, the employee still has to collect it—assuming the employer has enough money to pay it and does not file for bankruptcy. For now, focus on what happens to that giant number after the jury leaves the courtroom. Do not pass Go. Do not collect $20 million.  Holmes v. American HomePatient, Inc., 2026 U.S. App. LEXIS 26232 (3d Cir. Aug. 27, 2026), is an extraordinary example.  Patricia Holmes was the only Black employee in American HomePatient’s Penn State office. Her white supervisor, Timothy McCoy, was the person responsible for preventing discrimination and protecting employees from a hostile work environment. Instead, the Third Circuit described evidence that McCoy referred to Black people using the N-word, used another racial epithet, and referenced the KKK.  One incident began when McCoy turned to Holmes at work and asked, “what do you think about the ‘N’ word?” Holmes answered that it was “an ugly word” that “[n]o one should be saying.” McCoy then asked whether she knew the word “means black people,” pulled out his phone, and tried to Google it. After another employee corrected his spelling and pronounced the slur, McCoy and the employee “bust out laughing.”  Holmes testified that it was “[o]ne of the most humiliating days of [her] life” because her boss viewed her and “an entire race in such a derogatory, demeaning, cruel, immoral way.” She shook, felt ashamed, vomited twice, and reported the incident the next day.  Then came the N95 mask fit test. A white coworker had to place a white hood over Holmes’s head. McCoy asked another employee to take a picture or video and then laughed while commenting on the “ironic” sight of “a white woman putting a hood on -- a white hood on a black woman’s head.” Holmes understood the comment as a reference to the KKK. Years later, she testified that she still shook, cried, could not sleep, and had nightmares about that day.  And the company’s response did not exactly cover itself in glory.  When Holmes complained, management learned that McCoy had threatened employees to discourage them from contacting HR. Yet he was not disciplined for that intimidation. When employees complained to area manager Mark Cattron, the evidence showed that Cattron would call McCoy and they would “just laugh.”  After Holmes reported the N-word incident, management discussed counseling both Holmes and McCoy about inappropriate workplace discussions. Holmes then heard that she might be written up too. McCoy asked her: “What are your intentions here, Patricia? Are you looking to get somebody fired, or do you want to be happy here?” The question presented Holmes with a false choice: either accept the racism and remain “happy” at work, or object to it and risk getting someone fired. One or the other. Not both.  McCoy then accused Holmes—who the Third Circuit described as “blameless”—of “trying to start trouble.” And, remarkably, management decided that McCoy, the supervisor accused of racial harassment, should counsel Holmes about appropriate workplace behavior.  The investigation was not much better. HR did not interview another employee involved in the N-word incident even though company training called for interviewing everyone involved before reaching a conclusion. HR nevertheless concluded that McCoy “did not make the racial slur.” Although McCoy received a written warning, it addressed his failure to supervise another employee—not his own discriminatory conduct.  A jury found that American HomePatient created a racially hostile work environment in violation of 42 U.S.C. § 1981 and awarded Holmes $500,000 in compensatory damages and $20 million in punitive damages.  Sounds about right to me. That type of conduct should be slapped with a $20 million blow to the head. Really bad race discrimination should equal really harsh punitive damages.  But that is not how the law works.  Holmes did not walk away with a $20.5 million judgment.  The district court reduced the punitive damages award from $20 million to $1 million. On appeal, the United States Court of Appeals for the Third Circuit agreed that $20 million was constitutionally excessive. But it also held that American HomePatient’s conduct was “exceedingly reprehensible” and that $1 million understated its severity. The Third Circuit ultimately approved $2 million in punitive damages—a 4:1 ratio to the $500,000 compensatory award.  That is an important reality check for any employee who reads about massive race discrimination, employment discrimination, or hostile work environment verdicts in the news. The headline usually reports the verdict. It rarely follows the case through the later reduction and appeal. That is exactly why the value of an employment discrimination case cannot be based on a verdict you saw in the news, on social media, or during a “hey, did you see...” conversation with friends over dinner.  The jury gets to speak. It does not always get the last word. 

Legal Takeaways 

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  • Race discrimination can support compensatory and punitive damages when the evidence and law permit.  
  • A jury’s punitive damages award is subject to judicial and constitutional review.  
  • Even “exceedingly reprehensible” race discrimination does not give a jury unlimited authority to punish an employer.  
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What Damages Can I Recover In A Race Discrimination Case? 

If your employer discriminated against you because of your race, proving discrimination is only half the battle. The next question is intensely practical: What did the racial discrimination cost you, what did it do to you, and what can a jury award you for it?  Employment law divides those losses into different categories. Losing $40,000 in wages is not the same as spending a year suffering anxiety and sleepless nights. And neither is the same as punitive damages intended to punish an employer for particularly serious misconduct. Each has a different purpose and is determined differently.  Back pay compensates an employee for wages and benefits already lost because of the discrimination. In a wrongful termination case, that generally means comparing what the employee would have earned from the former employer with what the employee actually earned, or reasonably could have earned, after the termination.  Front pay addresses future lost wages when the effects of the discrimination are expected to continue and reinstatement is not appropriate. Unlike back pay, which looks backward, front pay estimates future economic loss caused by the discrimination.  Compensatory damages address other harm caused by discrimination, including emotional distress. In Holmes, the jury awarded Patricia Holmes $500,000 in compensatory damages. The evidence included nausea, vomiting, uncontrollable shaking, crying, insomnia, and nightmares. The Third Circuit treated those physical and emotional effects as evidence of the severity of the harm Holmes suffered. Holmes, 2026 U.S. App. LEXIS 26232, at *11–12.  There is no simple calculator for emotional distress. The amount depends on the evidence showing what the discrimination actually did to the employee.  Punitive damages serve a different purpose. They are not compensation for lost wages or emotional harm. Their purpose is “to punish wrongdoing and deter it.” Id. at *15 (quoting Washington v. Gilmore, 124 F.4th 178, 187 (3d Cir. 2024)). The amount therefore depends on factors including the seriousness of the employer’s conduct and the amount necessary to punish and deter it. The Third Circuit also recognized that an employer’s size and wealth can matter because an award that would seriously punish a small defendant may have little effect on a prosperous corporation.  That distinction explains the verdict in Holmes. The jury awarded $500,000 to compensate Holmes for the harm she suffered and another $20 million to punish American HomePatient and deter similar conduct. Those numbers were doing different jobs.  Attorney fees and costs may also be recoverable under applicable employment discrimination laws, but they are separate from the damages awarded to compensate or punish. The Third Circuit specifically held that Holmes’s attorney-fee award was not part of her compensatory damages when calculating the ratio between compensatory and punitive damages. Id. at *17 n.65.  So when you see a large race discrimination verdict, break the number apart. Back pay replaces past economic losses. Front pay addresses future economic losses. Compensatory damages address harms such as emotional distress. Punitive damages punish and deter sufficiently serious misconduct. Attorney fees and costs are a separate category.  Practical Tip: Do not evaluate a race discrimination case by one headline number. Separate past wages, future wages, emotional harm, punitive damages, and attorney fees because each category requires different evidence and is calculated under different rules.  Best Race Discrimination Lawyer Blogs on Point: 

Can A Judge Reduce What A Jury Awards For Race Discrimination? 

Yes. A jury verdict is not necessarily the final damages award. After trial, a judge can review the amount awarded by the jury and, when legally appropriate, reduce it.  One procedure for doing that is called remittitur. In federal court, Federal Rule of Civil Procedure 59(a)(1)(A) authorizes a court to grant a new trial after a jury trial for reasons historically recognized in federal court. When a court concludes that damages are excessive, traditional remittitur allows the court to condition denial of a new trial on the employee accepting a reduced award.  That gives the employee a choice: accept the lower amount or proceed to a new trial on damages.  Post-trial review also does not necessarily end with the trial judge. A party can appeal an appropriate post-trial ruling, allowing the appellate court to review whether the trial court applied the governing legal standard correctly.  Thus, there can be several steps between hearing the jury announce a multimillion-dollar verdict and actually having a final judgment: jury verdict → post-trial review → remittitur or other appropriate relief → appeal.  Practical Tip: When you see a huge race discrimination verdict in the news, check the procedural posture. “Jury awards” does not necessarily mean “employee receives.” Post-trial motions and appeals may still stand between the verdict and the final recovery.  Best Racially Hostile Work Environment Attorney Blogs on Point: 

Is There A Limit On Punitive Damages For Race Discrimination?

Yes. But there is no formula that tells an employee, employer, jury, or judge exactly where the constitutional limit on punitive damages falls.  The Due Process Clause prohibits punitive damages that are “grossly excessive or arbitrary.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). Courts consider three guideposts: (1) how reprehensible the employer’s conduct was; (2) the relationship between the punitive damages and the actual or potential harm to the employee; and (3) how the award compares with civil penalties for similar misconduct. Id. at 418; Holmes, 2026 U.S. App. LEXIS 26232, at *10–11.  But these guideposts are not numbers you can plug into an Excel spreadsheet and have the constitutional limit pop out at the bottom. They require judgment, and reasonable judges can weigh the same facts differently.  Start with reprehensibility, the most important factor. Courts consider whether the harm was physical or economic; whether the conduct showed indifference to health or safety; whether the employee was financially vulnerable; whether the misconduct was repeated; and whether it was intentional rather than accidental. State Farm, 538 U.S. at 419.  Every factor favored Holmes. She suffered vomiting, shaking, crying, insomnia, and nightmares. She earned $13 per hour. The racial misconduct was repeated and intentional. And McCoy was the supervisor responsible for preventing discrimination while, as the Third Circuit put it, “poisoning” the workplace. The court called the conduct “exceedingly reprehensible.” Holmes, 2026 U.S. App. LEXIS 26232, at *11–14.  Then comes the ratio between punitive and compensatory damages. The Supreme Court has expressly refused to establish a fixed constitutional limit. It has observed that “few awards exceeding a single-digit ratio” will satisfy due process and that 4:1 “might be close to the line of constitutional impropriety.” State Farm, 538 U.S. at 424–25. But those are guideposts, not mathematical rules. The Third Circuit itself recognized that the constitutional line is “inherently imprecise.”   Holmes shows how uncertain the calculation can be.  The jury awarded $20 million in punitive damages. The district judge reduced that to $1 million. Holmes argued for $20 million or, alternatively, $4.5 million. American HomePatient argued for $500,000. The Third Circuit ultimately chose $2 million.  Same case. Same conduct. Same $500,000 compensatory award. Very different numbers.  The Third Circuit held that the jury’s 40:1 ratio was constitutionally excessive. But it also held that the district court’s 2:1 ratio was too low given American HomePatient’s “exceedingly reprehensible conduct and its prosperity.” The court ultimately approved 4:1—$2 million in punitive damages. Holmes, 2026 U.S. App. LEXIS 26232, at *15–17. The opinion expressly recognizes both that the Supreme Court has avoided a concrete ratio and that courts have upheld ratios above 4:1.   That is why punitive damages are particularly difficult to predict. The Constitution creates a limit without providing a precise formula for finding it. The answer depends on the facts, the harm, the employer, the governing precedent—and inevitably some judicial judgment about where the line should be drawn.  Practical Tip: Be skeptical of anyone who values punitive damages by simply multiplying compensatory damages by a particular number. Ratios matter, but there is no universal multiplier, and Holmes demonstrates how dramatically the answer can change from one decisionmaker to the next.  Best Employee’s Rights Law Firm Blogs on Point: 

Can An Employment Lawyer Help Maximize Discrimination Damages? 

Yes. Proving that an employer committed race discrimination is only part of the job. An experienced employment lawyer must also prove what that discrimination cost the employee and develop the evidence supporting each available category of damages.  That work starts long before trial. Lost wages require employment and compensation records. Emotional distress damages require evidence showing how the discrimination actually affected the employee. Punitive damages require evidence about the seriousness of the employer’s conduct, including what management knew, how it responded, whether the conduct was repeated, and whether the employer actually enforced its anti-discrimination policies.  Holmes shows why that matters. The evidence did not stop with racial comments. The jury heard how the conduct physically and emotionally affected Holmes, how management responded after she complained, how her supervisor treated her afterward, and how American HomePatient handled its investigation. Those details gave the jury evidence to evaluate both compensatory and punitive damages.  Spitz, The Employee’s Law Firm, focuses on representing employees, not employers. As one of the largest law firms in the United States dedicated to employee rights, Spitz has the resources and trial experience to investigate discrimination claims, develop damages evidence, and take cases to a jury when necessary.  If you believe you suffered race discrimination, racial harassment, a hostile work environment, or wrongful termination, speak with an experienced employment attorney about both liability and damages. Spitz offers a free initial consultation and our No Fee Guarantee means you do not pay attorney fees unless we recover for you. 

Frequently Asked Questions About Race Discrimination Damages

[box] What damages can I recover in a race discrimination case?  Depending on the law and facts, damages may include back pay, front pay, emotional distress damages, punitive damages, attorney fees, and costs. The available damages can differ depending on which employment discrimination law applies.  Do I need medical records to recover emotional distress damages for discrimination?  Not necessarily. An employee’s testimony can provide evidence of emotional distress. Medical or counseling records may strengthen that evidence when they exist, but treatment is not automatically required to recover damages for humiliation, anxiety, sleeplessness, or other emotional harm.  Does my salary affect how much my race discrimination case is worth?  It can. Salary and benefits directly affect economic damages such as back pay and front pay. But economic loss is only one part of potential case value. Emotional distress and punitive damages, when legally available, depend on different evidence.  Does quitting my job reduce the damages I can recover for race discrimination?  It can. Leaving a job may affect claims for lost wages, depending on why the employee resigned and the surrounding circumstances. But resignation does not automatically eliminate every type of discrimination damages. The particular claim, reason for leaving, and available evidence matter.  Do I have to look for another job to recover lost wages after employment discrimination?  Generally, an employee seeking lost wages has a duty to make reasonable efforts to reduce those losses by seeking comparable employment. What constitutes a reasonable job search depends on the circumstances. Failing to make reasonable efforts can reduce an eventual back-pay award. [/box] Employment Lawyer Disclaimer  This race discrimination damages blog is intended for general informational purposes only and is not legal advice. Employment law claims depend on the specific facts, applicable statutes, available evidence, jurisdiction, and procedural history. Past jury verdicts, settlements, and court decisions do not guarantee or predict the value or outcome of any other employee’s claim. If you believe your employer subjected you to race discrimination, racial harassment, a hostile work environment, or wrongful termination, consult a qualified employment lawyer about your individual circumstances. No attorney can promise a particular result, damages award, or settlement. Reading this blog, visiting our website, or communicating with Spitz, The Employee’s Law Firm, does not by itself create an attorney-client relationship. This content may constitute attorney advertising or a legal advertisement under applicable law. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Threaten Deportation If I Complain?]]> https://www.calltherightattorney.com/?p=263431 2026-09-02T14:15:24Z 2026-09-03T16:00:09Z H-2A migrant farm employee working in a field while facing workplace coercion, visa threats, and deportation threats

How Coercion And Forced Labor Claims Work Under Federal Law 

Many workers come to the United States legally on a visa for a simple reason: work hard, earn money, and support their families back home. That opportunity should not become a weapon in an employer’s hands. An employee should not have to choose between staying silent and being threatened with deportation, losing a visa, or being blocked from returning to the United States. This is a whole level beyond just wrongful termination.  That is the fight at the center of Gomez-Echeverria v. Purpose Point Harvesting, LLC, 2026 U.S. App. LEXIS 26411, at *1–2 (6th Cir. Aug. 28, 2026). Purpose Point Harvesting recruited Guatemalan workers through the H-2A visa program for seasonal agricultural work in Michigan. The program prohibited employers from charging recruitment fees as a condition of employment.  The workers alleged a system of workplace coercion. They testified that defendants charged $2,500 recruitment fees, underpaid them, and used immigration-related threats to keep them quiet. Milton Gomez allegedly demanded that workers lie about their treatment and repeatedly threatened to deport them, “stain” their visas, or “black-list” them so they could not return to the United States.  Gomez denied charging recruitment fees and disputed substantial wrongdoing. Then came the particularly audacious move: defendants asserted counterclaims against the workers, including breach of contract. The opinion does not identify the factual basis for that counterclaim. But the posture is remarkable. The workers alleged exploitation and coercion. The employer responded, in part, by suing them back.  A jury heard both stories during an eight-day trial. It found defendants liable on every claim submitted against them except the Michigan Human Trafficking Victims Compensation Act claim against Lucille Gomez and rejected the breach-of-contract counterclaim. The judgment included $105,000 in compensatory damages and $450,000 in punitive damages. The United States Court of Appeals for the Sixth Circuit affirmed. 

Legal Takeaways

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  • Forced labor does not require physical violence. The Sixth Circuit Court of Appeals held that liability under the TVPRA can arise through threats of serious harm, abuse or threatened abuse of legal process, or a scheme intended to make a person believe that refusing to work will cause serious harm or physical restraint. 
  • Deportation threats and visa threats become especially significant when they are part of a broader pattern of workplace coercion designed to control an employee’s ability to complain, leave, or resist the employer. 
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When Do Employer Threats Become Illegal Forced Labor?

Employer threats can become illegal forced labor when they are used to make an employee believe that refusing to work, leaving, or resisting will cause serious harm, legal consequences, or physical restraint. Physical violence is not required. In Gomez-Echeverria, the Sixth Circuit Court of Appeals held that liability under the Trafficking Victims Protection Reauthorization Act can arise when labor is obtained through “serious harm or threats of serious harm,” “abuse or threatened abuse of legal process,” or a scheme intended to make a person believe that refusing to work will bring serious harm or physical restraint.  That employment law standard fit the workers’ evidence. They testified that Purpose Point charged illegal $2,500 recruitment fees, restricted their movement, confiscated passports, limited visitors, destroyed records, and repeatedly threatened deportation and other consequences if they spoke about their treatment. The Sixth Circuit Court of Appeals held that this evidence supported the jury’s conclusion that the conduct was “intentional and egregious.”  The employer offered a very different story. Gomez denied charging recruitment fees, claimed the passports were collected only for safekeeping, and maintained that workers went to other stores and participated in social events. Those competing accounts created a credibility fight. The jury heard both and found defendants liable on every claim submitted against them except one claim against one defendant.  Employment law does not require a jury to evaluate each threat, restriction, or confiscated document in isolation. The question under the TVPRA was whether defendants knowingly obtained labor, or knowingly benefited from a venture obtaining labor, through one of the prohibited forms of coercion. The Sixth Circuit Court of Appeals emphasized that a qualifying “pattern” involves “repeated action,” rather than “an isolated incident.” The employee rights protected by the statute therefore reach a system of coercion built from multiple acts, even when the employer offers an innocent explanation for individual pieces of that system.  A threat does not need a locked door to become forced labor. Fear can do the locking.  Practical Tip: If an employer threatens your immigration status, visa, police involvement, financial harm, or other consequences for leaving or complaining, preserve the exact words, date, witnesses, and surrounding events. Evidence showing repeated threats or restrictions can help establish a pattern of coercion rather than leaving the dispute dependent on one employee’s recollection of one conversation.  Best Wrongful Termination Lawyer Blogs on Point: 

Can My Employer Threaten To Blacklist My Visa If I Speak Up?

Yes. A visa threat can become powerful evidence of workplace coercion when the employer uses it to silence an employee or make continued work feel like the only safe option. In Gomez-Echeverria, Gomez allegedly told workers to keep quiet and lie about their treatment to Department of Labor officials, medical staff, and others. He also repeatedly threatened to deport them, “stain” their visas, or “black-list” them so they could not return to the United States.  Those threats carried unusual weight because the workers’ ability to return to the United States mattered enormously to them. The Sixth Circuit Court of Appeals held that the plaintiffs were “undeniably vulnerable victims” who feared reprisal and the loss of future work in the United States. Luis Gomez-Echeverria testified that he earned $7 per day working on a palm plantation in Guatemala. Artemio Coronado Esteban testified that he could not read and could only “sort of” write. The plaintiffs also could not speak English.  That context is critical. A threat to blacklist a visa is not just an insult or a nasty comment when the employer controls access to a job that may provide far more income than the employee can earn at home. It can become economic leverage, immigration leverage, and workplace leverage all at once.  The employer disputed substantial wrongdoing. But the jury was entitled to weigh that denial against testimony that the threats were paired with demands for silence and lies. Credibility disputes like that belong to the jury, not the judge. The jury found defendants liable on the claims presented to it, with one exception involving one defendant, and the Sixth Circuit Court of Appeals affirmed.  A visa should be a path to work, not a leash.  Practical Tip: If an employer threatens to blacklist your visa, damage your immigration status, or stop you from returning to the United States, save the exact words and the surrounding message or conversation. Evidence that the threat was tied to silence, complaints, or continued work can help show that the employer was using immigration consequences as leverage.  Best Employee’s Rights Attorney Blogs on Point: 

Can My Employer Control My Passport, Money, And Movement?

An employer controlling an employee’s passport, money, movement, and communications can provide powerful evidence that the employment relationship has become something far more coercive. In Gomez-Echeverria, the workers did not rely on deportation threats alone. They described multiple ways defendants allegedly controlled ordinary parts of their lives outside the fields.  Start with their identification. Defendants regularly confiscated the workers’ passports and Social Security cards. The Sixth Circuit Court of Appeals specifically noted that federal law prohibits knowingly destroying, concealing, removing, confiscating, or possessing certain immigration documents in specified circumstances. Gomez offered an innocent explanation: the passports were collected for safekeeping. That competing explanation gave the jury a factual dispute to resolve.  Then there was money. Lucille Gomez allegedly made herself an authorized user on the workers’ local bank accounts without their knowledge. The workers testified that she withdrew $2,500 from Luis Gomez-Echeverria’s account without his authorization as a purported recruitment fee. They also alleged that they were required to buy food from a store owned by her father.  And the control allegedly extended to daily life. The workers testified that defendants restricted cellphone use and visitors and accompanied them when they went shopping. When Hervil Gomez-Echeverria injured his thumb, he allegedly went without adequate medical treatment for two weeks until the injury became infected and required surgery.  Any one fact might invite an employer explanation. Put together, they tell a different story. The Sixth Circuit Court of Appeals considered the confiscated passports, restrictions on movement, recruitment fees, destroyed employment records, repeated deportation threats, living conditions, and medical-care evidence when evaluating the reprehensibility of defendants’ conduct.  Control becomes harder to dismiss as coincidence when it follows an employee everywhere.  Practical Tip: Preserve evidence showing the full pattern, not merely the worst incident. Bank records, messages about passports, restrictions on transportation or visitors, employment records, and medical communications can show how separate acts fit together as evidence of workplace coercion and interference with employee rights.  Best Employment Law Firm Blogs on Point: 

What Should I Do If My Employer Is Threatening My Visa Or Immigration Status? 

If your employer is using deportation threats, visa threats, financial pressure, or other workplace coercion to control you, choosing the right employment lawyer matters. These cases can turn on patterns that are easy to miss when each event is viewed separately. The best attorney will know how to connect the threats, documents, money, witnesses, employment records, and employer explanations into evidence that shows what was really happening.  Spitz, The Employee’s Law Firm, represents employees, not employers. We are one of the largest law firms in the United States focused on employee rights, with the resources to take on employers that may have far more money and power than the employee challenging them. Our attorneys have substantial litigation and trial experience because an employer is much more likely to take a claim seriously when the lawyer across the table is prepared to take the case to a jury.  Whether the issue involves forced labor, workplace coercion, discrimination, wrongful termination, or an employee who believes they were wrongfully fired, the first step is understanding what happened and what employment law actually provides. Spitz offers a free initial consultation and our No Fee Guarantee means eligible clients do not pay attorney fees unless we obtain a recovery. If something about the way your employer is treating you feels wrong, tell us what happened. We will listen, evaluate the facts, and give you a straight answer about your employee rights. 

Frequently Asked Questions About Employer Visa Threats And Forced Labor

[box] Can my employer threaten to have me deported if I complain about work?  An employer’s deportation threat can become evidence of illegal workplace coercion when it is used to make an employee keep working, remain silent, or fear the consequences of resisting. Employment law can protect employee rights even when the employer never uses physical force.  Can an employer threaten to blacklist my work visa?  Visa threats can be legally significant when an employer uses them as leverage over an employee’s work or conduct. Threatening to blacklist, damage, or interfere with an employee’s ability to return to the United States may help establish forced labor or workplace coercion when connected to demands for continued work or silence.  Is it legal for my employer to take my passport?  Taking or controlling an employee’s passport can raise serious legal issues, particularly when it is combined with restrictions, threats, or other conduct designed to control the employee. An employment lawyer evaluating forced labor should examine the passport issue together with the employer’s other conduct rather than treating it as an isolated event.  Can I have an employment law claim even if my employer never physically forced me to work?  Yes. Forced labor does not necessarily require physical violence or physical restraint. Threats of serious harm, threatened abuse of legal process, and patterns of coercion can create liability when they are used to obtain labor.  Is threatening my immigration status considered employment discrimination or wrongful termination?  Not automatically. Forced labor, employment discrimination, and wrongful termination are different legal issues. An employee who was wrongfully fired or subjected to discrimination may have additional employment law claims, but the particular facts and applicable law determine what claims exist. A qualified attorney should evaluate each potential claim separately. [/box] Employment Lawyer Disclaimer  This employee rights, forced labor, workplace coercion, discrimination, and wrongful termination blog provides general information about employment law and is not legal advice. Every employee’s situation is different, and whether an employer violated the law depends on the particular facts and applicable law. If you believe you were subjected to forced labor, deportation threats, visa threats, discrimination, wrongful termination, or were otherwise wrongfully fired, consult a qualified employment lawyer or attorney about your specific circumstances. Prior results do not guarantee or predict a similar outcome, and nothing in this blog promises any particular result. This content may constitute attorney advertising or a legal advertisement depending on the jurisdiction. Reading this blog, visiting our website, or contacting Spitz, The Employee’s Law Firm, does not by itself create an attorney-client relationship. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Dig Into My Life After I Sue?]]> https://www.calltherightattorney.com/?p=263416 2026-08-24T14:57:05Z 2026-09-01T16:00:20Z Employee reviewing invasive discovery requests, deposition papers, and documents in a wrongful termination and employment discrimination lawsuit.

Why Discovery Can Feel Invasive But Still Be Required 

Sue your employer for race/color discrimination, sexual harassment, or age discrimination, and something deeply annoying happens: the employer gets to investigate you. Documents. Written questions. Witnesses. A deposition. Information you may consider personal. If you filed an employment discrimination or wrongful termination lawsuit expecting discovery to be a one-way interrogation of the bad guys, federal court has some disappointing news.  Discovery is a two-way street. And there is no express lane for the person who filed the lawsuit.  Michael Dean Williams learned that lesson after suing his former employer, Crystal Flash Co., and three managers. Williams, proceeding pro se, alleged that a coworker repeatedly assaulted and harassed him during a 420-day period and that the defendants ignored his complaints and protected the coworker because of race. The District Court screened Williams’s complaint, threw out some claims, but allowed his Title VII of the Civil Rights Act of 1964 retaliation and racially hostile-work-environment claims to proceed.  Read that again. Williams had Title VII race discrimination, retaliation, and wrongful termination claims still alive in federal court.  Then discovery arrived.  Crystal Flash served discovery requests and sought Williams’s deposition. Williams did not provide his required initial disclosures, witness lists, or exhibit lists. He did not answer the company’s discovery requests. And he told defense counsel he did not intend to sit for a deposition.  Then came perhaps the least advisable AI-assisted discovery strategy yet preserved in a federal appellate decision.  Defense counsel asked whether Williams would agree that Crystal Flash could file a motion asking the judge to compel him to provide the discovery he had refused to give. Williams responded: “I’m supposed to sign-off on trusting you in Discovery[?] [AI] puts that at a 10 on the BullShit Meter.”  There were two problems with that approach.  First, Williams did not need to trust Crystal Flash’s lawyer. Opposing lawyers are called opposing lawyers for a reason. Discovery has rules for deciding what must be disclosed and procedures for challenging requests that go too far.  Second, AI does not outrank a federal judge.  In Williams v. Crystal Flash Co., No. 25-2108, 2026 U.S. App. LEXIS 23632 (6th Cir. Aug. 5, 2026), the United States Court of Appeals for the Sixth Circuit affirmed dismissal of Williams’s lawsuit with prejudice after repeated discovery violations and court warnings. The Sixth Circuit Court of Appeals held that his conduct reflected “a willful intent to thwart the case proceedings or, at the very least, reckless disregard” for the consequences of his noncompliance.  Williams went into discovery with surviving Title VII claims. He came out without a case. No race discrimination case. No retaliation case. No wrongful termination case. Nothing. And it was not because he lost because there were not facts or evidence to prove his case. He lost because he did not understand the court’s discovery rules and opted to go it alone instead of getting the best employee’s rights lawyer near him to help.  That is one hell of a hard discovery lesson. 

Legal Takeaways

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  • Discovery is required, but it is not unlimited. Federal Rule of Civil Procedure 37 authorizes sanctions, including dismissal, when a party fails to comply with a discovery order. An employee can properly challenge disputed discovery; refusing to participate is something very different. 
  • Being pro se does not make discovery optional. Williams argued that his failures resulted from inexperience and excusable neglect rather than willfulness or bad faith. The Sixth Circuit Court of Appeals affirmed dismissal after considering his repeated refusal to comply despite warnings and additional opportunities. 
  • AI can help someone learn, but it does not excuse violating discovery obligations or court orders. Williams told the Sixth Circuit Court of Appeals that he used “AI tools” to learn procedure; the Court nevertheless held that the record did not show a good-faith effort to comply. 
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Can I Refuse Discovery That Feels Too Personal Or Invasive?

No. An employee cannot refuse discovery just because it feels personal or invasive. But the employer does not get everything it asks for either. Federal Rule of Civil Procedure 26 puts limits on discovery, and those limits—not discomfort—decide what must be produced.  Rule 26(b)(1) generally allows discovery of nonprivileged information that is relevant to a claim or defense and proportional to the needs of the case. That can include deeply personal information. If an employee puts lost wages, emotional harm, discrimination, retaliation, or wrongful termination at issue, information bearing on those claims or the employer’s defenses may become fair game.  Private does not mean privileged. Personal does not mean irrelevant. And embarrassing does not mean undiscoverable.  But filing an employment lawsuit does not put your entire private life on clearance at Costco. Relevance has limits. So does proportionality. Privileged information receives separate protection. And Rule 26(c) allows a party to seek a protective order against discovery that would cause, among other things, “annoyance, embarrassment, oppression, or undue burden or expense.”  That gives an employee options when the employer reaches too far. Object to the request. Assert a privilege when one applies. Negotiate a narrower request. Seek appropriate protection from the judge. The Federal Rules provide a vocabulary for saying no. “I don’t feel like answering” is not in it.  The distinction is simple:  An objection challenges the employer’s right to the information. A refusal challenges the authority of the process itself.  Williams chose refusal. The Sixth Circuit Court of Appeals held that despite repeated warnings and opportunities, he never supplied initial disclosures, witness lists, exhibits, or discovery responses and refused to appear for his deposition. The Sixth Circuit Court of Appeals held that his conduct reflected “a willful intent to thwart the case proceedings or, at the very least, reckless disregard” for their progress.  That distinction ultimately cost him his case.  Discovery can invade your privacy without violating the rules. A good employment lawyer knows the difference between discovery you dislike and discovery the employer has no right to demand.  Practical Tip: If a discovery request seeks medical records, private messages, financial information, social-media content, or other personal material, do not ignore it or destroy anything. Give the exact request to your employment attorney before the deadline so the lawyer can determine whether to answer, object, assert privilege, negotiate a narrower request, or seek court protection.  Best Employment Discrimination Lawyer Blogs on Point: 

What Should I Expect During Discovery In A Wrongful Termination Case?

Expect written questions, document requests, identification of witnesses and evidence, and usually a deposition. Discovery is where a wrongful termination or employment discrimination lawsuit moves from allegations to proof. The complaint tells your story. Discovery asks whether the evidence backs it up.  The Federal Rules provide several basic tools.  Initial disclosures under Rule 26(a) require parties to identify certain witnesses, documents, electronically stored information, and other information supporting their claims or defenses without waiting to be asked. No hide-and-seek required.  Interrogatories under Rule 33 are written questions answered under oath. They lock down facts, witnesses, damages, dates, and positions. That matters when someone’s version of events develops a suspicious amount of creativity six months later.  Requests for production under Rule 34 seek documents and electronically stored information. Emails. Texts. Photos. Policies. Personnel records. Calendars. Electronic communications. Discovery loves receipts.  Requests for admission under Rule 36 force a party to admit or deny specific propositions. Used well, they shrink the battlefield by eliminating facts nobody can seriously dispute.  Depositions under Rule 30 are live testimony under oath. Opposing counsel asks the questions, and the answers become part of the record. A deposition is not a conversation. There is no edit button afterward.  And these tools work both ways. The employer gets to test the employee’s allegations. The employee’s attorney gets to test the employer’s story. Who actually decided to fire you? What did they know? What documents did they create? Did they follow their own policies? Did someone give a different explanation before the lawsuit? Discovery is where an employer’s neat explanation can collide with its own documents and witnesses.  Williams spent his energy elsewhere. The District Court counted 15 meritless motions and two frivolous appeals of nonfinal orders “instead of engaging in discovery.”  Talk about working hard at the wrong job.  In an employment case, allegations get you into the fight. Discovery gives you the evidence to win it.  Practical Tip: Preserve potentially relevant texts, emails, photos, calendars, and employment records, including evidence you think hurts your case. Give it to your employment lawyer. A bad document your attorney sees early can be planned for; the same document appearing for the first time during your deposition can become an ambush.  Best Employee’s Rights Attorney Blogs on Point: 

Can I Trust AI To Tell Me What To Do In My Employment Lawsuit? 

No. AI can help you understand litigation. Do not trust it to run your litigation. When discovery, deadlines, objections, or court orders are involved, you need legal judgment—not an answer that confirms what you already want to believe.  Williams supplied the cautionary tale himself. On appeal, he argued that he acted in good faith and used “AI tools” to learn court rules and procedures. The Sixth Circuit Court of Appeals held that “the record does not reflect any good faith effort to comply with discovery or the court’s orders.”  Then came the BullShit Meter.  Defense counsel asked whether Williams would concur in a motion to compel his overdue discovery responses. Williams responded: “I’m supposed to sign-off on trusting you in Discovery[?] [AI] puts that at a 10 on the BullShit Meter.”  Maybe discovery felt like bullshit. That is not the legal standard.  There is no BullShit Meter in the Federal Rules of Civil Procedure. No reasonably competent employment lawyer responds to discovery with: Objection. Bullshit. The lawyer asks whether the request is relevant, proportional, privileged, overbroad, unduly burdensome, or otherwise objectionable under the rules. If there is a proper objection, make it. If there isn’t, the answer may be: I know you hate this, but you have to respond.  AI responds to the question and context you give it. Frame the problem as “Why is this discovery bullshit?” and you should not confuse a helpful answer built around that premise with independent legal judgment about whether the discovery is actually objectionable.  A good lawyer has a different job.  Your lawyer is not there to agree with you. Your lawyer is there to protect your case.  Sometimes that means telling an employee that the employer’s discovery is objectionable and fighting it. Sometimes it means saying the request is invasive, irritating, and perfectly permissible. Good legal advice does not become bad legal advice because the client hates hearing it.  Williams emphasized that he was a “regular, everyday working man” who had spent his career on the road, “not in law school.” The Sixth Circuit Court of Appeals nevertheless held that the warnings were understandable, noted that he refused the pro se assistance offered to him, and affirmed dismissal with prejudice.  AI can help you justify a position int the way you want without being reliable. A great employment lawyer will tell you whether the law justifies it. Those are not the same thing.  Practical Tip: If AI tells you what you hoped to hear about discovery, a deadline, or a court order, treat that as a reason to ask your attorney—not as permission to act. An experienced employment lawyer should tell you how the law actually applies to your case, including when the answer is one you absolutely do not want to hear.  Best Wrongful Termination Law Firm Blogs on Point: 

Frequently Asked Questions About Discovery In Employment Lawsuits

[box] Can My Employer Get My Text Messages During A Wrongful Termination Lawsuit?  Potentially. Text messages can be discoverable if they fall within the permissible scope of discovery, including relevance and proportionality. A message does not become immune from discovery because it is personal, but your employment lawyer can determine whether a particular request should be answered, narrowed, or challenged.  Can My Employer Get My Social Media During An Employment Discrimination Case?  Potentially. Relevant social-media content may be subject to discovery in an employment discrimination lawsuit, but suing your employer does not automatically give the employer unlimited access to every post, photograph, message, or piece of account information. The particular discovery request still must satisfy the applicable discovery rules.  Should I Delete Text Messages Or Social Media Before Discovery?  No. Deleting potentially relevant texts, social media, emails, or other electronic evidence can create a spoliation problem. Federal Rule of Civil Procedure 37(e) addresses electronically stored information that should have been preserved for litigation but was lost because reasonable steps were not taken to preserve it, and sanctions may follow. Preserve potentially relevant evidence—even if it is embarrassing or hurts your case—and give it to your employment lawyer to determine what must be produced and how to address it.  How Should I Answer Written Discovery In A Wrongful Termination Case?  Give your employment attorney all potentially responsive information and documents—including facts or evidence you think hurt your case. Do not decide for yourself what to omit because it seems irrelevant, embarrassing, or damaging. Your attorney needs the complete picture to determine what must be disclosed, what can properly be objected to, and how to finalize accurate discovery responses. Your job is to give your lawyer the facts. Your lawyer’s job is to determine how the law requires those facts to be answered. [/box] Employment Lawyer Disclaimer  This employee rights and workplace discrimination blog provides general information about employment law, employment discrimination, discovery, Title VII, wrongful termination, and employees who believe they were wrongfully fired. It is not legal advice and should not be relied upon as advice about any specific employee, employer, lawsuit, discovery request, or workplace dispute. Employment law rights and discovery obligations depend on the particular facts, applicable law, and court rules. Consult a qualified employment lawyer or attorney for advice about your specific situation. No result, recovery, settlement, or outcome is promised or guaranteed, and past results do not guarantee future results. Reading this blog or contacting Spitz, The Employee’s Law Firm does not create an attorney-client relationship unless one is expressly established. This blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can I Sue A Company Under Title VII If I Never Worked There?]]> https://www.calltherightattorney.com/?p=263414 2026-08-24T14:51:44Z 2026-08-27T16:00:16Z Person reviewing a stack of court papers while handling a Title VII employment discrimination lawsuit without an employment lawyer.

Why Employment Relationships Matter In Discrimination Cases

Title VII of the Civil Rights Act of 1964 is an employment discrimination law. The word employment is doing some serious work in that sentence. If you sue a defendant for Title VII discrimination, you must allege the required employment relationship with that defendant. La’Keya Keo’s problem was brutally simple: she sued the FBI under Title VII but never alleged that she worked for the FBI or even applied to work there.  And that was hardly the only thing happening in her complaint.  Representing herself pro se, which means on her own without an employee’s rights attorney, Keo alleged “police brutality, misconduct, police negligence, race/color discrimination, harassment, retaliation, gender discrimination, age discrimination, religious discrimination, medical negligence, medical malpractice” and more under Title VII. Quite a legal charcuterie board. But her factual allegations boiled down to something very different: Keo claimed she was the victim of cybercrimes and cyberbullying and that the FBI failed to investigate or otherwise act on her reports. No acts relating to employment with the FBI—because Keo never alleged that she worked there or even applied for a job there.  And there certainly was no wrongful termination claim against the FBI: you cannot be wrongfully fired from a job you never alleged you had.  Yet Keo’s lawsuit kept repeating Title VII like it was a magic incantation.  It is not.  In Keo v. Federal Bureau of Investigation, No. 26-1258, 2026 U.S. App. LEXIS 24038 (3d Cir. Aug. 10, 2026), the United States Court of Appeals for the Third Circuit affirmed dismissal and made the employment-law defect wonderfully uncomplicated: a Title VII plaintiff “must allege an employment relationship with the defendant[ ].” Keo alleged neither employee nor applicant status. Her Title VII claims were ultimately dismissed with prejudice.  There is a useful warning here for employees with real workplace discrimination claims: federal litigation is not Mad Libs. Picking the right defendant, the right law, and the right legal theory matters. 

Legal Takeaways 

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  • Title VII requires an employment relationship. A plaintiff pursuing Title VII employment discrimination must allege the required employment relationship with the defendant. Keo failed because she alleged neither that she was an FBI employee nor an applicant for FBI employment. 
  • More claims do not cure a missing legal element. Keo’s Title VII claims were dismissed with prejudice after the Third Circuit Court of Appeals concluded that she failed to state a viable Title VII claim and that further amendment would be futile. 
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Do I Have To Work For A Company To Sue It Under Title VII?

You do not necessarily have to work for a company to bring a Title VII claim against it, but Title VII requires the necessary employment relationship with the defendant. The Third Circuit Court of Appeals held that a Title VII plaintiff “must allege an employment relationship with the defendant[ ].” But that rule has some important wrinkles. Figuring out whether that relationship exists is not always as simple as reading the company name on a paycheck.  A job applicant can have Title VII rights without ever working a single day for the employer. Staffing-agency and temporary-worker arrangements can raise questions about whether more than one entity qualifies as an employer. Joint-employer situations can likewise make the legal employment relationship more complicated than the organizational chart suggests. And state employment discrimination laws may define covered employment relationships and liabilities differently. Those additional issues were not before the Third Circuit Court of Appeals in Keo because Keo had no employment connection to the FBI.  She did not allege that she was an FBI employee or that she applied for a job with the FBI. There was no alleged staffing arrangement or other employment relationship for the Third Circuit Court of Appeals to analyze. Her allegations instead concerned cybercrimes, cyberbullying, and the FBI’s alleged failure to act on her reports.  So the Title VII analysis ended almost as soon as it began. The Third Circuit Court of Appeals concluded that Keo failed to state a viable Title VII claim. And because further amendment would have been futile, her Title VII claims ended with prejudice.  Practical Tip: If you experienced workplace discrimination while applying for a job or working through a staffing agency, temporary agency, or another company at your worksite, tell your employment lawyer or attorney who hired you, paid you, supervised you, controlled your work, and made the challenged decision. Identifying the correct employment relationship can determine whom a Title VII claim should target.  Best Employment Discrimination Lawyer Blogs on Point: 

Does Calling Something Discrimination Make It A Title VII Claim?

No. Calling conduct “discrimination” does not make it a Title VII employment discrimination claim. Abraham Lincoln once asked: “If you call a dog’s tail a leg, how many legs does a dog have?” Four. Calling a tail a leg does not make it one.  Title VII works the same way.  Keo certainly had the vocabulary. Her amended complaint alleged “discrimination, harassment, Racial, Retaliation, Gender, Age, Religion” and more “pursuant to Title VII.” But her actual factual allegations concerned cybercrimes, cyberbullying, and the FBI’s alleged failure to investigate or act on her reports.  Calling those allegations Title VII claims did not make them Title VII claims.  The Third Circuit Court of Appeals looked past the labels to the required legal elements. Keo failed to allege that she was an FBI employee or applicant, even though a Title VII plaintiff “must allege an employment relationship with the defendant[ ].”  Legal claims are built from elements, not adjectives.  An employee may sincerely believe an employer discriminated, harassed, or retaliated against them. Sincerity does not supply a missing legal element. Neither does capitalization. Neither does adding another claim. The alleged facts must fit the law.  A good employment lawyer starts with the facts, not the label. Who employed you? What happened? Who made the decision? What facts connect that decision to a protected characteristic or protected conduct? Only then comes the question that matters: What legal claim do these facts actually support?  Keo started with Title VII and tried to fit her allegations inside it. The Third Circuit Court of Appeals ultimately concluded that she failed to state a viable Title VII claim.  Calling a tail a leg does not give the dog five legs. Calling something discrimination does not give you a Title VII claim.  Practical Tip: Before filing an employment discrimination claim, give your attorney the facts before giving them your diagnosis of the law. A strong employment lawyer can test those facts against each required element and identify the claims they actually support.  Best Employee Rights Attorney Blogs on Point: 

What Can Go Wrong If I Handle My Employment Discrimination Case Myself?

Plenty. Representing yourself in an employment discrimination case means a legal mistake can follow you from the complaint, through amendment, into dismissal, and all the way up on appeal. Keo’s case is a painful demonstration of how a problem that should be identified at the beginning can become much harder to fix at the end.  Keo proceeded pro se. The District Court first dismissed her complaint on sovereign-immunity grounds but gave her an opportunity to amend. She did. The amended complaint was dismissed too, this time without another opportunity to amend.  Strike one. Strike two. So Keo appealed.  But an appeal is not Complaint 3.0.  The Third Circuit Court of Appeals observed that Keo’s appellate arguments “mostly reiterate[d] her complaint’s allegations” and that she did not appear to “challenge meaningfully” the District Court’s determination that it lacked subject-matter jurisdiction.  That is a brutal sentence. An appeal requires attacking why the ruling below was legally wrong. Repeating the allegations that brought you to court may simply give the appellate judges another opportunity to read the same allegations.  Then Keo’s trip upstairs actually made part of the result worse.  The District Court had dismissed her claims without prejudice. The Third Circuit Court of Appeals affirmed but modified the judgment so Keo’s Title VII claims were dismissed with prejudice. The Third Circuit Court of Appeals concluded that she failed to state a viable Title VII claim and another amendment would be futile.  That is one brutal appellate souvenir: Keo appealed a dismissal without prejudice and came home with her Title VII claims dismissed with prejudice.  None of this means an attorney could have invented the employment relationship Keo never alleged. Lawyers cannot manufacture facts. The value of a good employment lawyer is recognizing what the facts actually support before those facts are committed to a complaint—and knowing which defendants, claims, arguments, and evidence belong there.  That is exactly why employees call Spitz, The Employee’s Law Firm. Spitz is one of the largest law firms in the United States dedicated to employee rights, with the resources and trial experience to evaluate Title VII, workplace discrimination, retaliation, and wrongful termination claims before avoidable mistakes become permanent ones. Our employment lawyers know the difference between a claim that needs better evidence, a pleading problem that can be fixed, and facts that simply do not support the legal theory an employee has in mind.  The initial consultation is free, and our no-fee guarantee means you do not pay attorney fees unless we obtain a recovery for you. If you believe your employer discriminated against you, retaliated against you, or wrongfully fired you, call Spitz before trying to navigate the federal courthouse alone.  Federal court is an expensive place to discover that your legal theory never fit your facts.  Practical Tip: Talk to an experienced employment attorney before filing a discrimination lawsuit—and, if your case has already been dismissed, before appealing. Early legal review can identify the proper defendant and viable claims; appellate review can determine whether the judge actually made a reversible legal error rather than simply giving the same allegations another trip through the courthouse.  Best Title VII Law Firm Blogs on Point: 

Frequently Asked Questions About Title VII And Employment Discrimination

[box] What Types Of Workplace Discrimination Are Illegal Under Title VII?  Title VII prohibits an employer from discriminating against an employee because of race, color, religion, sex, or national origin. Other federal and state employment laws may protect employees from additional forms of workplace discrimination.  Can A Staffing Agency And The Company Where I Work Both Be My Employer?  Potentially. Some staffing and joint-employer arrangements can involve more than one employer for employment law purposes. Determining which company qualifies as an employer depends on the particular employment relationship and cannot necessarily be answered by looking only at which company issues the employee’s paycheck.  What Does Pro Se Mean In A Lawsuit?  Pro se means representing yourself in a lawsuit without an attorney. A pro se plaintiff handles the case without a lawyer and remains responsible for presenting legally viable claims and arguments.  Will A Court Help Me If I File A Wrongful Termination Claim On My Own?  A court may construe a pro se employee’s filings liberally, but the judge does not become the employee’s employment lawyer. An employee pursuing a wrongful termination or employment discrimination claim without an attorney remains responsible for alleging facts that support a legally viable claim and for addressing the legal issues that arise during the case. [/box] Employment Lawyer Disclaimer  This employee rights and workplace discrimination blog provides general information about Title VII, employment law, employment discrimination, wrongful termination, and employees who believe they were wrongfully fired. It is not legal advice and should not be relied upon as advice about any specific employee, employer, lawsuit, or workplace dispute. Employment law rights depend on the particular facts and applicable law. Consult a qualified employment lawyer or attorney for advice about your individual circumstances. No result, recovery, settlement, or outcome is promised or guaranteed, and past results do not guarantee future results. Reading this blog or contacting Spitz, The Employee’s Law Firm does not create an attorney-client relationship unless one is expressly established. This blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Job Deny Remote Work For My Disability?]]> https://www.calltherightattorney.com/?p=263412 2026-08-24T14:40:23Z 2026-08-25T16:00:21Z Employee working remotely from home while seeking a disability accommodation involving essential job functions and the ADA interactive process.

How Essential Job Functions Control Accommodation Rights

You follow policy and tell HR that you need an accommodation for your disability in order to do your job safely, and specifically, that you would like to work from home. Your employer says you cannot work remotely because showing up in person is essential to your job. Is this disability discrimination? And who wins that disability accommodation fight? Under employment law, the answer may depend less on what your employer calls “essential” and more on what the evidence proves the job actually requires.  That fight put Carolyn Gardner and Kutztown University on opposite sides of a remarkably modern disability discrimination case.  Gardner was an associate professor diagnosed with an incurable autoimmune condition. She requested permission to teach her scheduled in-person courses remotely for four semesters. Kutztown had a serious defense: it had never hired a full-time faculty member exclusively to teach online, and the University treated requests to move in-person classes online as a “fundamental alteration.” Case over? Not even close.  Gardner had receipts. She had taught classes remotely for more than a decade. She completed Kutztown’s advanced online certification program in 2013. The collective bargaining agreement evaluated faculty based on “effective teaching, scholarship, and service” without requiring those duties to be performed in person. And Kutztown admitted it had “no policy, contractual definition, or pre-existing job description” stating that in-person teaching was essential.  Gardner sued Kutztown for disability discrimination and wrongful termination after the University rejected her requests to teach remotely. The District Court largely granted summary judgment to Gardner. On appeal, the United States Court of Appeals for the Third Circuit held that the competing evidence concerning essential job functions and reasonable accommodation could not be weighed at summary judgment and allowed those disputed issues to proceed toward trial. Gardner v. Kutztown University, No. 25-1295, 2026 U.S. App. LEXIS 24836 (3d Cir. Aug. 18, 2026). For an employee seeking remote work as a disability accommodation, that fight exposes the weakness in a blanket “everyone must work in person” defense. An employer can call physical presence a central function of the job. Calling it essential does not make it an established fact. 

Legal Takeaways 

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  • An employee pursuing a disability discrimination claim must be qualified to perform the essential functions of the job with or without reasonable accommodation. When the employee and employer present competing evidence about whether physical presence is an essential job function, weighing that evidence may belong to the jury rather than the judge at summary judgment. 
  • An employer must provide a reasonable disability accommodation when legally required, but the employee is not necessarily entitled to the particular accommodation preferred when the employer offers another accommodation that is itself reasonable.
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What Is An Essential Job Function And Why Does It Matter For Disability Accommodation Requests?

An essential job function is a duty an employee must be able to perform, with or without a reasonable disability accommodation. That requirement sits at the heart of a disability discrimination claim because the law protects a qualified employee; it does not require an employer to eliminate an essential function of the position.  The Third Circuit Court of Appeals framed the rule precisely. To establish a prima facie claim for intentional disability discrimination under the Rehabilitation Act, Gardner had to show that she was disabled, was “qualified” to perform the “essential functions” of her job with or without reasonable accommodation, and was nonetheless prevented from performing her job.  “Qualified” has two parts. First, the employee must satisfy the prerequisites for the position, such as the appropriate education, experience, skills, and licenses. Second, the employee must be able to perform the essential functions of that position with or without reasonable accommodation. Gardner cleared the first hurdle: Kutztown did not dispute that she possessed the education and experience necessary to work as an associate professor.  The second hurdle is where disability accommodation law does its real work. A reasonable accommodation can change how an employee performs a job while still allowing the employee to perform its essential functions. The Third Circuit Court of Appeals held that an accommodation is reasonable when it enables a qualified employee to “perform the essential functions of that position” or “to enjoy equal benefits and privileges of employment.”  Put simply: accommodation can change how an essential job function is performed; the employee must still be able to perform the essential function.  That distinction separates the job’s central function from the conditions an employer places around performing it. In Gardner’s case, everyone agreed she had the professional qualifications to teach. The unresolved employment law question was what her essential functions actually required.  Practical Tip: When requesting a disability accommodation, identify the job duties you can perform and how the requested accommodation would allow you to continue performing them. That creates a record focused on the legal question that matters: whether the accommodation permits you to perform the essential functions of your job.  Best Workplace Disability Accommodation Law Firm Blogs on Point: 

Is Working In Person Really An Essential Function Of My Job?

Not necessarily. An employer can require in-person work, but in a disability discrimination case, calling physical presence an essential job function does not resolve whether it actually is one. The evidence about the job matters. For example, in-person presence is more likely to be considered essential for roles like a surgeon performing operations, a firefighter responding to emergencies, or a courtroom trial attorney who must appear before a judge and jury. A fry cook cannot drop the basket of tenders remotely. By contrast, it is often not essential for jobs such as software development, data analysis, or many administrative roles that can be performed effectively remotely with the same outputs and performance standards.  Kutztown had evidence supporting its position. It had never hired a full-time faculty member to teach exclusively online. Except during COVID, Gardner had never taught more than one online class during a semester. And online courses represented only 6% of Kutztown’s offerings before COVID and 13% afterward. Those facts supported Kutztown’s argument that an associate professor was expected to teach in person.  Gardner’s evidence attacked that argument at its foundation.  The collective bargaining agreement evaluated faculty based on “effective teaching, scholarship, and service” without requiring those duties to occur in person. Kutztown admitted it had “no policy, contractual definition, or pre-existing job description” stating that in-person teaching was essential. Gardner had also taught classes remotely for more than a decade and completed Kutztown’s advanced online certification program in 2013.  That is a powerful factual contrast. The employee was not merely arguing that she thought she could work remotely. She had evidence about how Kutztown defined her job, how Kutztown had documented its requirements, and how she had actually performed teaching duties in the past.  The job on paper and the job in practice can test an employer’s claim about what is truly essential.  For an employee seeking remote work as a disability accommodation, that distinction can be decisive. If the employer claims location is essential, an attorney evaluating the discrimination claim should want the documents defining the position and the evidence showing how the work has historically been performed. In Gardner’s case, those categories of evidence pointed in competing directions.  Practical Tip: If your employer claims you must work in person, preserve the job description, employment policies, contracts, remote-work history, training records, and communications showing where and how you have performed the same duties. Specific evidence about the actual job gives an employment lawyer something concrete to test against the employer’s claim that physical presence is essential.  Best Disability Discrimination Attorney Blogs on Point: 

Can My Employer Automatically Deny My Request To Work Remotely?

No. An employer cannot automatically deny remote work as a disability accommodation without properly considering whether the employee can be reasonably accommodated. Under the ADA and the Rehabilitation Act, the interactive process requires a good-faith effort to address a disability accommodation request.  The Third Circuit Court of Appeals held that an employee claiming failure to accommodate must show: “(1) [s]he was disabled and h[er] employer knew it; (2) [s]he requested an accommodation or assistance; (3) h[er] employer did not make a good faith effort to assist; and (4) [s]he could have been reasonably accommodated.” An accommodation is reasonable when it enables a qualified employee to perform the essential functions of the position or enjoy equal benefits and privileges of employment.  Consistent with the ADA, Kutztown’s own policies created a problem for its defense. Its written policy required formal disability accommodation requests to be evaluated individually. But when Gardner requested remote teaching, Kutztown relied on a newly implemented position that requests to move in-person classes online would be considered a “fundamental alteration” and denied. For Gardner’s four requests, Kutztown either denied them or provided no response.  Kutztown argued that it nevertheless acted in good faith during the interactive process. The Third Circuit Court of Appeals held: “KU is not correct.” The record instead presented a material factual dispute over whether Kutztown sufficiently engaged in the interactive process for Fall 2021, Spring 2022, and Fall 2022.  Then came Spring 2023. Kutztown offered Gardner limited classroom capacity, a separate entrance, specialized air filters, and a plexiglass podium. That was enough. The Third Circuit Court of Appeals held that no reasonable juror could conclude the proposed accommodation was unreasonable because an employer must provide a reasonable accommodation, not the accommodation the employee prefers.  But Kutztown’s Spring 2023 victory may create a harder question for its defense to the earlier semesters. By Spring 2023, Kutztown had identified multiple measures that the Third Circuit Court of Appeals found constituted a reasonable means of minimizing Gardner’s risk of illness exposure. Why weren’t these measures considered and offered earlier during the interactive process for the prior semesters? That framing naturally leads to the central question. From an employee-side attorney’s perspective, Kutztown’s earlier refusals begin to look less like a lack of available options and more like a breakdown in the interactive process itself.  This matters. An employer cannot defend an ADA or Rehabilitation Act accommodation claim merely by showing that the employee did not receive the particular accommodation requested. The employer’s own later solution may become evidence worth examining when determining whether reasonable alternatives existed earlier and whether the employer genuinely made a good-faith effort to find them.  An automatic no can create a disability discrimination problem. A reasonable alternative can solve one. But a reasonable alternative discovered later may also raise questions about what the employer failed to consider earlier.  Practical Tip: Put your disability accommodation request in writing and preserve every response, proposed alternative, and unanswered communication. If your employer later offers an accommodation it previously failed to discuss, preserve when and how that option appeared; an employment lawyer can evaluate whether that chronology bears on the employer’s good-faith participation in the interactive process.  Best Wrongful Termination Lawyer Blogs on Point: 

Who Decides Whether My Employer Is Right That I Must Work In Person?

The jury, not the judge. When an employee and employer present competing evidence about whether working in person is an essential job function, the judge cannot decide which side has the better evidence at summary judgment. The Third Circuit Court of Appeals emphasized that the essential-function determination is a factual issue that “must be decided by a jury.”  Oddly enough, Gardner lost because of that rule. Normally, the employer is moving for and getting summary judgment. This is the rare case where the District Court granted summary judgment for the employee on Gardner’s intentional disability discrimination claims. The Third Circuit Court of Appeals took that victory away because her claims depended on whether in-person teaching was essential and whether full-time remote work was a reasonable disability accommodation. Those questions required “weighing evidence,” which the Third Circuit Court of Appeals held that both it and the District Court were “plainly prohibited from undertaking at summary judgment.”  Gardner lost a judgment. She did not lose her factual fight.  And that distinction may be far better for employees generally. The Third Circuit Court of Appeals held: “We do not suggest that the District Court here had no basis” for its conclusion—or even that the appellate judges, “if we were the triers of fact,” would decide differently. The problem was not necessarily the answer. The problem was that a judge had answered a disputed factual question reserved for the factfinder.  That is a meaningful protection in ADA and Rehabilitation Act litigation. An employer cannot win summary judgment on a disputed essential job function merely by persuading a judge that its evidence looks stronger. If deciding the issue requires weighing competing proof, the factual fight belongs before the jury.  A judge decides whether there is a real factual fight. The jury decides who wins it.  And getting past summary judgment can change the settlement equation. Once dismissal is off the table, an employer must confront the expense of trial, the uncertainty of putting witnesses before jurors, and the risk that the jury believes the employee. Those pressures can make resolution more attractive and give an employee meaningful negotiating leverage.  So Gardner’s reversal should not be mistaken for a simple employer victory. It took an early win away from one employee while reinforcing a rule that can help other disability discrimination and disability accommodation claims survive summary judgment. For an employment lawyer, getting a supported factual dispute to a jury can mean the difference between a case ending on motion practice and an employer having to confront the risks of trial or meaningful settlement.  Practical Tip: Give your attorney evidence, not conclusions. Preserve documents and testimony contradicting the employer’s claimed essential job function. A genuine factual dispute can keep an ADA disability accommodation claim alive through summary judgment, preserve the employee’s path to a jury, and strengthen settlement leverage as trial approaches.  Best Employee’s Rights Attorney Blogs on Point: 

How Do I Find An Attorney For A Wrongfully Denied Disability Accommodation?

Look for an attorney who represents employees and knows how to turn an ADA disability accommodation dispute into evidence. The best employment lawyer should investigate what your job actually requires, test the employer’s claimed essential functions, reconstruct the interactive process, identify accommodations the employer failed to consider, and build the factual disputes that can defeat summary judgment. A denial letter is only the beginning. The evidence behind it can decide the case.  Spitz, The Employee’s Law Firm is one of the largest law firms in the United States dedicated to employee rights. Our size provides resources to fight employers, while our extensive trial experience shapes how we build disability discrimination and employment law cases from the start. We offer free initial consultations and a no-fee guarantee because employees facing workplace discrimination should be able to understand their legal options before worrying about attorney fees.  If your employer wrongfully denied a disability accommodation, retaliated against you, or wrongfully fired you after requesting one, call Spitz. Our employment lawyers prepare cases to survive summary judgment, negotiate from strength, and go to trial when necessary. 

Frequently Asked Employment Law Questions

[box] Can An Employer Deny Remote Work As An ADA Disability Accommodation?  Yes, an employer can deny remote work if it is not a reasonable disability accommodation, including when remote work would prevent the employee from performing an essential job function. But calling physical presence essential does not automatically establish that it is; disputed evidence about an essential function may require resolution by a jury.  What Is An Essential Job Function Under The ADA?  An essential job function is a fundamental duty that an employee must be able to perform with or without a reasonable accommodation. In ADA and disability discrimination disputes, whether a particular requirement is essential can determine whether the employee is qualified for the position.  Does An Employer Have To Use The Interactive Process For A Disability Accommodation?  The interactive process requires a good-faith effort to address a requested disability accommodation. Relevant issues include whether the employer knew of the disability, whether the employee requested assistance, whether the employer made a good-faith effort to assist, and whether the employee could have been reasonably accommodated.  Does My Employer Have To Give Me The Exact Disability Accommodation I Request?  No. An employer may satisfy its accommodation obligation by offering a different reasonable disability accommodation. The employee is not necessarily entitled to the preferred accommodation if the alternative offered by the employer is reasonable.  Can Disability Discrimination Lead To Wrongful Termination?  A wrongful termination claim can involve disability discrimination when an employee is wrongfully fired because of a legally protected disability or issues involving a disability accommodation. Whether a termination violates employment law depends on the specific facts and applicable legal requirements. [/box] Employment Lawyer Disclaimer  This employee rights and workplace discrimination blog provides general information about employment law, ADA rights, disability discrimination, disability accommodation, essential job functions, the interactive process, wrongful termination, and employees who believe they were wrongfully fired. It is not legal advice. Employment law rights depend on the specific facts and applicable law, so consult a qualified employment lawyer or attorney about your circumstances. No result, recovery, settlement, or outcome is promised or guaranteed, and past results do not guarantee future results. Reading this blog or contacting Spitz, The Employee’s Law Firm does not create an attorney-client relationship unless one is expressly established. This blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Say I’m Too Dangerous To Work?]]> https://www.calltherightattorney.com/?p=263371 2026-08-18T16:02:56Z 2026-08-20T16:00:19Z

How The ADA Direct-Threat Defense Can Defeat A Disability Claim

Not every limit posed on a disabled worker is disability discrimination. Common sense tells us that certain disabilities can prevent some people from safely performing certain jobs. At the extreme, a person with narcolepsy who unpredictably falls asleep cannot safely drive an eighteen-wheeler down the highway. A blind person cannot safely pilot a commercial airliner. A person experiencing uncontrolled seizures should not be operating a crane hundreds of feet above a construction site. And a neurosurgeon with advanced Parkinson’s disease causing severe hand tremors and impaired fine motor control cannot safely perform delicate brain surgery.  The question, therefore, is not whether it is always illegal disability discrimination to prevent a disabled employee from performing a particular job. It isn't. The harder questions are where the law draws that line, when an employer can lawfully decide that a medical condition creates too much risk, whether a reasonable accommodation could make the work safe, and who ultimately gets to decide whether an employee is too dangerous to work.  Those questions sit at the heart of the  Americans with Disabilities Act (“ADA”) and modern employment law. The ADA protects employees from disability discrimination and requires employers, in appropriate circumstances, to consider a disability accommodation that would allow a qualified employee to perform the job. At the same time, the ADA does not require an employer to ignore a genuine and significant safety risk. That is where the ADA’s “direct threat” defense comes into play.  The United States Court of Appeals for the Eighth Circuit recently confronted exactly that issue in Christensen v. Union Pacific Railroad Co., No. 25-2173, 2026 U.S. App. LEXIS 24136, 2026 WL 2320846 (8th Cir. Aug. 11, 2026). Ross Christensen had worked as a railroad conductor for more than ten years before suffering an ischemic stroke. He recovered well. His treating neurologist cleared him to return to his conductor position, his cardiologist separately cleared him to work, and a successful ablation procedure restored his heartbeat to a normal rhythm. Union Pacific's doctors nevertheless concluded that Christensen's medical history created an unacceptable risk that he could suffer a future seizure. The railroad kept him from returning to his safety-sensitive conductor position. Christensen sued for ADA disability discrimination and wrongful termination   So, who gets to decide?  As Christensen shows, the answer is not automatically the employee's treating doctor. But employers do not get to make the decision simply by saying, “Safety first.” The ADA requires something much more demanding: an individualized and objectively reasonable assessment based on current medical knowledge or the best available objective evidence.  For an employee facing medical restrictions, a denied return to work, or a rejected accommodation request, that distinction can be the difference between a lawful safety decision and unlawful ADA disability discrimination and wrongful termination. And for an employment lawyer or employment attorney evaluating the case, the real fight is often over the evidence supporting the employer's safety judgment, whether the assessment was truly individualized, and whether a reasonable accommodation could have reduced or eliminated the claimed risk.  That is where the line gets drawn—and where ADA cases involving employee rights, disability accommodation, and claims that a disabled worker is too dangerous to work can be won or lost. 

Can My Employer Decide I Am Medically Unsafe To Work?

Yes—but not every decision based on workplace safety is illegal disability discrimination. The ADA sets the bar higher than merely showing that your disability creates some risk.  The Americans with Disabilities Act recognizes what it calls the “direct threat” defense. A direct threat is: “a significant risk to the health or safety of others . . . that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3).  Two words matter: significant risk. Almost every job involves some risk, and almost every medical condition could theoretically cause something to go wrong. That is not enough. The ADA asks whether the risk is significant and whether a reasonable accommodation can eliminate it.  The seriousness of the potential harm also matters. A medical condition that presents little meaningful danger in one job may present an unacceptable danger in another.  That was the problem for Christensen. He was not working a desk job. As a Union Pacific conductor, Christensen operated and moved trains and performed switching operations.  After Christensen's stroke, Union Pacific concluded that he faced an unacceptable risk of a future seizure. The railroad restricted him from operating company vehicles and machinery and from working on or near moving trains. In practical terms, he could no longer work as a conductor. Importantly, the Eighth Circuit Court of Appeals did not hold that any seizure risk automatically disqualifies an employee. Instead, the nature of Christensen's job changed the equation.  The District Court recognized that Christensen's increased seizure risk might have been relatively low. But if a seizure occurred while he was performing his job, the potential harm “was extreme.”  The Eighth Circuit Court of Appeals made the same point when distinguishing another Union Pacific case involving an employee who suffered cardiac arrest. That employee did not hold such a safety-critical position, which the Court said “fundamentally changes the direct threat analysis.”  That is the key. The ADA does not ask whether your disability makes your job perfectly risk-free. It asks whether your particular medical condition creates a significant safety risk in your particular job that cannot be eliminated through reasonable accommodation.  But an employer cannot simply declare that such a risk exists and call it a day. Before using the direct-threat defense to defeat an ADA disability discrimination claim, the employer must conduct an individualized assessment of the employee, the medical evidence, and the actual risks of the job. That required process—and whether the employer followed it—is where Union Pacific ultimately won Christensen's case.  Practical Tip: If your employer says your disability makes you unsafe to work, focus on the connection between the claimed medical risk and your actual job. Get your job description, medical restrictions, return-to-work releases, and accommodation requests. The question is not whether your disability creates any conceivable risk. It is whether it creates a significant risk in the job you actually perform that cannot be addressed through reasonable accommodation.  Best Disabilty Discrimination Law Firm Blogs on Point: 

What Is The Process For Deciding If My Disability Makes Me Unsafe To Work?

An employer cannot look at your diagnosis, imagine the worst-case scenario, and declare you unsafe. Under the ADA, determining that an employee poses a direct threat requires an individualized assessment.  The Eighth Circuit Court of Appeals explained that the employer bears the burden of proving the direct-threat defense. Its determination must be: ”(1) the result of an individualized assessment, (2) objectively reasonable, and (3) based on the ‘most current medical knowledge and/or on the best available objective evidence.’”  The assessment must also consider four things: how long the risk will last, the nature and severity of the potential harm, how likely the harm is to occur, and how imminent the potential harm is.  In other words, the ADA requires an employer to evaluate the employee, the medical evidence, the actual job, and the actual risk—not simply the name of the disability.  Union Pacific did exactly that with Christensen, and that is why it won.  After Christensen's stroke, Union Pacific obtained and reviewed his medical records. Its physicians initially imposed one-year sudden-incapacitation restrictions. When Christensen later sought to return to work, he provided updated medical records and underwent another fitness-for-duty evaluation. Those updated records contained evidence favorable to Christensen. His recovery was described as “excellent.” His balance and walking were normal. He had suffered no additional neurological event. And one of his physicians concluded that he was neurologically capable of commercial driving.  Union Pacific's physician nevertheless reached a different conclusion. After reviewing Christensen's medical history, he determined that Christensen had an unacceptable future seizure risk. Union Pacific also considered Federal Motor Carrier Safety Administration guidance addressing seizure risk following certain strokes and intracerebral hemorrhages.  Christensen attacked that process. He argued that relying on general FMCSA guidelines meant Union Pacific had not really evaluated him individually. The Eighth Circuit Court of Appeals disagreed. Union Pacific had to evaluate Christensen's specific medical condition—including the location of his stroke and the brain bleed he suffered during treatment—to determine whether the guideline applied to him in the first place.  The Court contrasted that process with another ADA case where an employer made only a few general calls to support its “‘prejudice, stereotypes, [and] unfounded fear’” about allowing a deaf person to drive a truck. Union Pacific's review of Christensen, the Court said, was “more robust by orders of magnitude.”  Christensen had another seemingly powerful fact: his own doctors cleared him to work.  Still not enough.  The Eighth Circuit Court of Appeals explained: ”The question is objective reasonableness, and mere disagreement among experts does not show Union Pacific's decision was objectively unreasonable.”  That may be the most important litigation lesson in Christensen. An employee does not necessarily defeat an employer's direct-threat defense simply by producing a doctor who disagrees with the employer's doctor. The employee needs evidence attacking the reasonableness of the employer's determination.  The Court demonstrated what that evidence might look like by discussing Sanders v. Union Pacific Railroad Co. There, the employee had expert testimony that Union Pacific's medical decision was “‘completely uncalled for, completely wrong, and not based on any medical principles at all.’” Christensen had no comparable evidence attacking the medical foundation of Union Pacific's decision.  That difference mattered. One employee had evidence from which a jury could question whether the employer's medical judgment was objectively reasonable. Christensen essentially had a disagreement between doctors. Under the Eighth Circuit's analysis, those are not the same thing.  Practical Tip: If your employer claims you are a direct threat, do not focus only on getting a doctor's note saying you can work. Find out how the employer reached its decision. Preserve the medical information you provided, fitness-for-duty evaluations, job descriptions, restrictions, accommodation requests, and communications explaining the decision. An ADA employment lawyer can evaluate whether the employer actually conducted an individualized assessment based on objective medical evidence—or simply used your disability as the reason to keep you out of work.  Best ADA Work Accommodation Attorney Blogs on Point: 

How Do I Find The Best ADA Employment Lawyer Near Me? 

Start by looking for an employment lawyer who regularly represents employees—not employers—in ADA disability discrimination and reasonable accommodation cases. As Christensen demonstrates, these cases can turn on much more than whether your doctor says you can work. The best ADA employment lawyer should know how to attack the employer’s claimed safety justification, determine whether the medical assessment was truly individualized, identify evidence the employer ignored, evaluate possible reasonable accommodations, and develop the medical or expert evidence necessary to get an ADA disability discrimination claim to a jury.  Spitz, The Employee’s Law Firm focuses on representing employees and protecting employee rights. We are one of the largest law firms dedicated to representing employees, which gives our employment attorneys the resources to take on employers in complex disability discrimination, failure-to-accommodate, retaliation, and wrongful termination cases. Our attorneys have extensive litigation and trial experience, and we understand that being denied the ability to work because of a disability can threaten an employee’s career, income, and family. Spitz offers free initial consultations and a no-fee guarantee, and our employment lawyers have a history of achieving great results for employees. If your employer says that your disability makes you unsafe, refuses to return you to work, denies a reasonable accommodation, or otherwise uses your medical condition against you, contact Spitz to discuss your rights and the evidence with an experienced ADA employment attorney.  Employment Lawyer Disclaimer  This employment law blog provides general information about the Americans with Disabilities Act (“ADA”), disability discrimination, reasonable accommodations, the ADA direct-threat defense, and employee rights. It is not legal advice. Every employment situation depends on its own facts, medical evidence, job duties, available accommodations, and applicable law. If your employer has refused to let you work because of a disability or medical condition, denied a reasonable accommodation, imposed medical restrictions, retaliated against you, or wrongfully fired you, consult with a qualified employment lawyer or ADA employment attorney about your specific situation.  Nothing in this blog promises or guarantees any particular result. Past results do not guarantee future outcomes. Reading this blog does not create an attorney-client relationship with Spitz, The Employee’s Law Firm or any of its employment attorneys. This attorney blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Change Its Reason For Firing Me Later?]]> https://www.calltherightattorney.com/?p=263369 2026-08-18T15:59:02Z 2026-08-18T16:00:31Z Black employee leaving an industrial workplace after complaining to an employer about racial discrimination and workplace retaliation

How Changing Explanations Prove Workplace Discrimination And Retaliation

Our wrongful termination attorneys see it all the time. The boss or manager tells an employee they are fired for one reason. Then the employer puts that reason in writing, and suddenly the explanation grows. Something gets changed. Something gets added. Then the race/color discrimination lawsuit arrives, the employer starts worrying about whether its stated reason will hold up in court, and even more reasons appear. It becomes an attempted victory by volume.  Can an employer keep changing the reason for firing an employee? It can offer another explanation. But every new explanation creates another question: If that was really why you were fired, why wasn’t that the reason when they fired you? Under employment law, changing explanations can become powerful evidence of pretext - evidence that the employer’s stated reason is covering up employment discrimination or retaliation.  That question sits at the center of Eddie Stewart’s case. Stewart, an African-American driver for GES Recycling South Carolina LLC, described a workplace filled with racial harassment. He testified about repeated racial slurs, racist cartoons, a “slave driver” comment, and manager Adam Gordon mocking Black employees by pushing out his lower lip. Stewart eventually complained about race discrimination, including telling Gordon that he would “not let a black man move up in this company.” Gordon asked whether Stewart was going to quit. Stewart said no. Gordon suspended him.  Eight days later, GES fired Stewart. According to Stewart, GES told him that “the way you talked to [Gordon]” was something the company could not tolerate. GES later defended the termination as based on broader “belligerent and insubordinate conduct.” In Stewart v. GES Recycling S.C. LLC, No. 24-1523, 2026 U.S. App. LEXIS 24465 (4th Cir. Aug. 13, 2026), the United States Court of Appeals for the Fourth Circuit held that the record presented genuine disputes over whether GES’s stated reason was false or had changed over time. The Fourth Circuit Court of Appeals vacated summary judgment on Stewart’s retaliation claim and sent it back for further proceedings. 

Legal Takeaways 

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  • An employee may establish pretext by presenting evidence that an employer’s stated reason for termination is false or changed over time. The Fourth Circuit Court of Appeals held that “different justifications at different times” are themselves probative of pretext. 
  • An employee claiming retaliation under 42 U.S.C. § 1981 ultimately must prove that retaliation was a but-for cause of the termination - that the termination would not have occurred without the employer’s retaliatory action.
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What Counts As Complaining About Race Discrimination At Work?

Employment law protects an employee from retaliation for complaining about or opposing race discrimination in the workplace. Complaining is straightforward: an employee reports racial discrimination, racial harassment, or other discriminatory treatment. Opposing discrimination is broader. It includes objecting to or challenging conduct that the employee believes is discriminatory. Under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, the employee must establish protected activity, an adverse employment action, and a causal relationship between the two. The Fourth Circuit Court of Appeals identified opposition to workplace discrimination as protected activity.  Protected activity is not limited to reporting race discrimination to Human Resources, filing a charge of race discrimination with the EEOC, or filing a racial harassment lawsuit. An employee may engage in protected activity by complaining directly to a boss or manager about discrimination or objecting to discriminatory treatment at work. The law protects opposition to discrimination, not just formal paperwork about discrimination.  Stewart’s complaint shows what that can look like in the real world. He identified the protected class: Black employees. He identified employment discrimination he believed was occurring: Gordon’s failure to provide him crane training. He identified racial harassment: racial slurs, Yarbrough’s “***** slave driver” comment, and the racist cartoon. And Stewart identified the alleged discriminatory motive directly, telling Gordon that he would “not let a black man move up in this company.”  An employer defending a retaliation claim may try to strip the discrimination out of the conversation and characterize the encounter as an employee arguing with a supervisor. GES focused heavily on Stewart’s conduct during the June 13 confrontation. But whatever factual dispute existed over Stewart’s tone and behavior, the subject of his complaints was not ambiguous. Stewart was accusing management of racial discrimination and racial harassment. The Fourth Circuit Court of Appeals treated his opposition to workplace discrimination as protected activity.  Specificity can become powerful evidence when an employer later denies that an employee complained about discrimination at all. “My boss treated me unfairly” does not identify the same problem as “my boss denied me training because I am Black.” Stewart tied his treatment to race, identified specific racial conduct, and directed those accusations to the manager he believed was discriminating against him. An employment discrimination lawyer evaluating a retaliation or wrongful termination claim would want to know those exact details because protected activity is the first link between the discrimination complaint and what the employer did next.  And what GES allegedly did next happened fast. Gordon asked Stewart whether he was going to quit. Stewart said no. Gordon suspended him immediately.  That takes us directly to the next question: was the suspension retaliation?  Practical Tip: When complaining about race discrimination or racial harassment, identify the conduct you believe is discriminatory, connect it to race, record who received the complaint, and preserve the date and your actual words. If your employer later claims you never complained about employment discrimination, contemporaneous evidence can help prove exactly what you opposed and who knew about it.  Best Race Discrimination Attorney Blogs on Point: 

Is It Retaliation If I Am Suspended Right After Complaining About Race Discrimination?

Yes, an immediate suspension after an employee complains about race discrimination can be evidence of retaliation. To establish a prima facie retaliation claim under Title VII and  42 U.S.C. 1981, an employee must show protected activity, an adverse employment action, and a causal relationship between the two. The Fourth Circuit Court of Appeals held that “close temporal proximity weighs heavily in favor of finding a genuine dispute as to causation.” Timing does not automatically prove retaliation. But when an employer acts immediately after a discrimination complaint, that timing becomes evidence of why the employer acted.  Stewart’s timing could hardly have been closer. During the June 13 meeting, he complained to Gordon about race discrimination and racial harassment. Gordon asked Stewart whether he was going to quit. Stewart said no. Gordon immediately suspended him, told him to leave the premises, and said that he would call Stewart later. The discrimination complaint and the suspension were not separated by weeks or months. According to Stewart’s evidence, one immediately followed the other.  GES had an answer. It maintained that Stewart was disciplined because of how he behaved during the meeting, not because he opposed employment discrimination. GES characterized Stewart’s behavior as “belligerent and insubordinate conduct.” Stewart admitted using profanity and testified that he may have raised his voice. But he disputed the threatening or intimidating behavior GES attributed to him. The Fourth Circuit Court of Appeals held that Stewart’s testimony, viewed in his favor at summary judgment, established “no worse conduct than using profane language and perhaps raising his voice.” That factual dispute could not be resolved by simply accepting the employer’s adjectives. The Fourth Circuit Court of Appeals held that the district court improperly drew inferences against Stewart when it accepted GES’s characterization of his conduct. Stewart’s account could support a finding that his behavior was “non-intimidating, non-threatening,” while GES presented a materially different account. Those competing versions created a genuine dispute of material fact. An employer cannot turn disputed conduct into an established fact simply by calling it insubordination.  Judge Rushing’s dissent shows exactly how GES would argue the other side. The dissent emphasized Stewart’s admitted profanity and testimony that he may have raised his voice and concluded that the record supported GES’s position that his conduct during the meeting caused the termination. The majority did not hold that Stewart’s version was true. It held that GES’s version was not entitled to be treated as true at summary judgment. When testimony conflicts over what happened in the meeting and reasonable inferences can be drawn for the employee, the judge cannot resolve that factual dispute in the employer’s favor before trial.  Practical Tip: If you are suspended or disciplined soon after complaining about racial discrimination, preserve the date, time, decision-maker, and exact reason the employer gives you for the discipline. That evidence can connect the adverse action to your protected complaint and create a contemporaneous record against which any later explanation can be tested.  Best Wrongful Termination Lawyer Blogs on Point: 

Can My Employer Give A Different Reason For Firing Me After I Sue For Race Discrimination? 

An employer may offer a different or additional explanation for firing an employee after a race discrimination lawsuit is filed—BUT—and this is a big but, changing the explanation can become evidence against the employer. Under employment law, an employee can establish pretext with evidence that the employer’s stated reason is false or changes over time. The Fourth Circuit Court of Appeals held that offering “different justifications at different times is, in and of itself, probative of pretext.” An employer does not necessarily win by piling up reasons. Sometimes attempted victory by volume creates evidence of pretext.  That is where Stewart’s retaliation claim became dangerous for GES. Stewart testified that when GES terminated him on June 21, Garcia told him that Gordon “felt threatened” and that “the way you talked to [Gordon]” was something the company could not tolerate. According to Stewart, Garcia also acknowledged that Gordon had “a lot of racial issues going on,” but nevertheless told Stewart that his manner of speaking to Gordon was the problem.  GES’s position in the litigation went further. It maintained that Stewart was terminated for “belligerent and insubordinate conduct,” a characterization encompassing conduct Stewart disputed. The Fourth Circuit Court of Appeals zeroed in on the difference. The majority held that a reasonable jury could find GES “told Stewart one thing - that he was terminated for his use of profanity during his meeting with Gordon - and is now claiming another - that he was terminated for other belligerent and insubordinate conduct during that meeting.”  GES had a serious defense. It argued that these were not different reasons at all. Both explanations concerned Stewart’s behavior during the same June 13 meeting. Judge Rushing agreed in dissent, concluding that GES had “consistently maintained” that Stewart was fired because of his conduct during that meeting and that its later description merely supplied additional detail about the same reason. That is the employer’s best argument: The reason never changed. We just described it more fully.  The majority held that a jury could see something very different. Stewart disputed engaging in the additional threatening or intimidating conduct attributed to him. Based on the conflicting evidence, the Fourth Circuit Court of Appeals held that a reasonable jury could find GES’s asserted reason was false or had changed over time. That was enough to create a genuine dispute over pretext and whether retaliation was a but-for cause of Stewart’s termination.  There is an enormous difference between adding detail and adding a new accusation. When an employer’s later explanation includes misconduct the employee denies committing - and that alleged misconduct was not the reason communicated when the employee was fired - credibility becomes central. The employer can argue that it merely elaborated. The employee can point to the original explanation and ask the question that pretext evidence makes unavoidable: If that was really the reason, why wasn’t it the reason on firing day?  Practical Tip: If your employer does not give you the reason for your termination in writing, promptly send an email or text confirming what you were told, including who fired you, the reason given, and when it was communicated. If the employer later changes or adds reasons for firing you, that contemporaneous message can help establish what the employer actually told you on firing day and provide evidence that the later explanation may be pretext.  Best Workplace Retaliation Law Firm Blogs on Point: 

How Do I Find The Best Employment Lawyer For A Race Discrimination And Retaliation Case? 

The best employment lawyer for a race discrimination or retaliation case should know how to attack the employer’s story, not simply repeat the employee’s story. A wrongful termination case can turn on details that look small until somebody knows where to push: the exact words used when you complained, who knew about the discrimination complaint, how quickly discipline followed, what reason you were given when you were fired, and whether that reason changed later. Those facts need an attorney who knows how to turn inconsistencies into evidence and evidence into a case that can survive long enough to reach a jury.  Spitz, The Employee’s Law Firm is one of the largest law firms in the United States dedicated to employee rights. That means our employment lawyers have the resources to take on employers that may have far more money than the individual employee they wrongfully fired. Our attorneys bring substantial trial experience, a history of strong results, and a practice built around representing employees facing discrimination, racial harassment, retaliation, and wrongful termination. Size matters. Experience matters. But so does having a lawyer who understands that losing your job is not just another file - it can turn your finances, family, and future upside down.  If you believe you were wrongfully fired after reporting race discrimination or other employment discrimination, call Spitz for a free initial consultation. Our No Fee Guarantee means you will never pay attorney fees unless we obtain a recovery for you. Let our employment law attorneys listen to what happened, examine whether your employer’s story changed, and determine the best strategy for protecting your rights. 

Employment Law FAQs 

[box] What Is Pretext In A Race Discrimination Or Retaliation Case?  Pretext is evidence from which a factfinder can conclude that an employer’s stated reason for an adverse employment action is not its true reason. In a race discrimination or retaliation case, evidence that an employer’s explanation is false, inconsistent, or changes over time may support a finding of pretext.  Can An Employer Change The Reason For Firing An Employee?  An employer may give additional or different reasons for firing an employee, but changing explanations can be evidence of pretext in a discrimination or retaliation case. If the employer gives one reason at termination and later relies on a materially different reason, the employee may use that inconsistency as evidence that the stated reason for the termination was not the true reason.  Can Changing Reasons For Firing An Employee Prove Wrongful Termination?  Changing reasons do not automatically prove wrongful termination. But inconsistent termination explanations can support an employee’s claim that the employer’s stated reason is pretext for an unlawful reason, including employment discrimination or retaliation. The original reason and each later explanation should be compared carefully.  Is It Retaliation If An Employer Fires An Employee After A Discrimination Complaint?  Firing an employee after a discrimination complaint can constitute retaliation if the employee engaged in protected activity and the required causal connection exists between that activity and the termination. Close timing between a complaint about employment discrimination and an adverse employment action can be evidence supporting causation, but timing does not automatically establish retaliation. [/box] Employment Lawyer Disclaimer  This employee rights, workplace discrimination, retaliation, and wrongful termination blog provides general information about employment law and is not legal advice for any particular employee, employer, claim, or situation. Race discrimination, racial harassment, employment discrimination, retaliation, and wrongful termination claims depend on their specific facts and applicable law, and an employee who believes they were wrongfully fired or subjected to discrimination should consult with a qualified employment lawyer or attorney for advice about their individual circumstances. Whether a Black or African-American employee, or any other employee, has a viable claim cannot be determined from general information in this blog, and no result in any prior case guarantees or predicts a result in another case. Spitz, The Employee’s Law Firm makes no promises regarding the outcome of any matter, and reading this blog, contacting the firm, or submitting information does not create an attorney-client relationship. This blog is a legal advertisement. Choosing the best lawyer or best attorney for an employment law matter is an important decision and should be based on the facts and circumstances of the individual case. ]]> by Spitz, The Employee's Law Firm <![CDATA[Wrongfully Fired Because Of A Medical Condition?]]> https://www.calltherightattorney.com/?p=263298 2026-08-11T12:49:08Z 2026-08-11T16:00:29Z Employee reviewing FMLA leave, disability accommodation, performance write-ups, and termination records after being wrongfully fired How Employees Can Prove Disability Discrimination And FMLA Retaliation  When an employer gets sued for employment discrimination, wrongful termination, or retaliation, they all seem to know the same song: “performance.” They play it loudly. They play it repeatedly. The employee was late. The employee missed deadlines. The employee made mistakes. Then come the metrics, write-ups, corrective actions, and performance reviews. The employer points to the paper and expects everyone to accept the accusations as fact because a manager typed them into a document. But writing something down does not make it true. And writing it down after an employee develops a medical condition, takes Family and Medical Leave Act (“FMLA”) leave, or requests a disability accommodation can raise an entirely different question: Why did the employer suddenly start keeping score now? Performance problems may be legitimate. They may also be exaggerated, stripped of context, selectively documented, or used to hide discrimination and retaliation. The paper trail does not end the inquiry. Sometimes it starts it.  Jennifer Ramsey’s story shows why. Ramsey began working for San Jacinto College District in 2005. She was promoted four times and received positive performance reviews for years. Starting in 2018, however, Ramsey suffered from a “severe medical condition” affecting her “vision, hearing, balance, and other cognitive functions.” She eventually took FMLA leave for surgery from November 2020 through January 4, 2021. Eleven days after returning to work, Ramsey received her first written complaint about her work.  That was only the beginning. Ramsey later took another period of FMLA leave, received approval for intermittent FMLA leave, and sought disability accommodation for migraines and hearing problems. Meanwhile, the performance documentation accumulated. Her employer cited tardiness, missed deadlines, errors, communication problems, and allegedly unprofessional conduct. On December 1, 2021, Ramsey’s supervisor recommended termination. Two days later, she was fired.  Ramsey sued. The district court granted summary judgment to the employer. But the United States Court of Appeals for the Fifth Circuit saw factual disputes that a judge could not simply resolve in the employer’s favor. In Ramsey v. San Jacinto College District, No. 25-20195, 2026 U.S. App. LEXIS 23946 (5th Cir. Aug. 5, 2026), the Fifth Circuit Court of Appeals reversed summary judgment on Ramsey’s ADA disability discrimination, ADA retaliation, and FMLA retaliation claims. It affirmed summary judgment against Ramsey only on her FMLA interference claim.  The employer had paperwork. Ramsey had evidence that called the story told by that paperwork into question. At summary judgment, credibility disputes are not for the judge to settle. The Fifth Circuit Court of Appeals held that courts may not “evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes.” The question is whether a reasonable jury could find for the employee.  That distinction gave Ramsey another day in court. 

Legal Takeaways

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  • Disability discrimination: An employer can offer poor performance as a legitimate reason for termination, but an employee can survive summary judgment by producing evidence that creates a genuine factual dispute over whether that explanation was the real reason for the wrongful termination. The Fifth Circuit Court of Appeals held that “[a]n explanation is false or unworthy of credence if it is not the real reason for the adverse employment action.” 
  • ADA and FMLA retaliation: Timing can help establish retaliation, but timing becomes substantially stronger when paired with evidence challenging the employer’s credibility. The Fifth Circuit Court of Appeals held that the “combination of suspicious timing with other significant evidence of pretext[] can be sufficient to survive summary judgment.” 
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Can I Prove Disability Discrimination If My Employer Says I Was Fired For Poor Performance?

Yes. An employee can prove disability discrimination even when the employer has documented performance problems. The employer gets to offer poor performance as its legitimate reason for the termination. But it does not get to declare its own paperwork true. The employee can survive summary judgment by producing evidence from which a reasonable jury could find that the stated reason was pretext - not the real reason for the wrongful termination.  The Fifth Circuit Court of Appeals held that an employee challenging the employer’s reason must rebut each discrete reason offered for the termination. But at summary judgment, the employee does not have to prove pretext conclusively. The Fifth Circuit Court of Appeals held: “the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext.” Ramsey, 2026 U.S. App. LEXIS 23946, at *12.  San Jacinto College District had ammunition. It pointed to repeated tardiness, missed deadlines, errors, and multiple corrective notices. Ramsey even acknowledged some non-medical reasons for being late, including traffic, forgetting something at home, a tire leak, and, memorably, cleaning “rodent carnage” at her house. The dissent thought that record made the answer obvious: poor performance caused the firing.  The majority did not erase those facts. It found evidence that could make a jury question the employer’s narrative. Ramsey had worked there since 2005, received four promotions, and had years of positive performance reviews. Her first written complaint about her work came eleven days after she returned from FMLA leave in January 2021. Even after a June corrective action, her July performance review rated her “valuable.”  Then there was what the paperwork left out. The Final Corrective Action Notice criticized Ramsey for elevated tones and quoted her asking why nobody “accommodates me.” Ramsey claimed she had told her supervisor that her hearing problems caused her raised voice. The Fifth Circuit Court of Appeals found that omitting that disability-related context could permit a reasonable factfinder to doubt whether the other reasons in the notice were real.  Paper does not turn an employer’s version of events into truth. Credibility still belongs to the jury.  Practical Tip: If your employer suddenly starts documenting “poor performance” after learning about your medical condition, preserve the write-ups alongside earlier performance reviews, emails, awards, accommodation communications, and FMLA records. Contradictions between what the employer documented before and after learning about the medical issue can provide evidence that a claimed performance reason for termination is pretext rather than the real reason you were fired.  Best Disability Discrimination Lawyer Blogs on Point: 

Can My Employer Retaliate Against Me For Requesting An Accommodation For A Medical Condition? 

No. The ADA protects employees with qualifying disabilities from disability discrimination, and reasonable accommodations are part of that protection. The Fifth Circuit Court of Appeals held that the ADA prohibits an employer from discriminating “against a qualified individual on the basis of disability.” An employee is qualified when the employee can perform the essential functions of the job despite the disability. Ramsey, 2026 U.S. App. LEXIS 23946, at *9-10.  A disability accommodation addresses a workplace barrier created by the employee’s medical condition so the employee can continue working. Ramsey’s requests illustrate the point. Her migraines created problems with fluorescent lighting, so she requested softer lighting. Her hearing problems led her to request a specialized headset. These were requests directed at particular medical limitations affecting her at work - not requests for an employer to excuse every future performance problem.  And the employee is legally protected for asking. The Fifth Circuit Court of Appeals held that “making a request for a reasonable accommodation under the ADA constitutes participat[ing] in an activity protected under the statute.” Ramsey, 2026 U.S. App. LEXIS 23946, at *21. An ADA retaliation claim requires the employee to initially show three things: protected activity, an adverse employment action, and a causal connection between them. Requesting the disability accommodation can satisfy the first element. Termination can satisfy the second. Very close timing can supply the initial causal connection.  Ramsey’s accommodation history was concrete. When she did not receive support for softer lighting, she bought lamps for her office herself. When she did not receive responses concerning a specialized headset, she bought that herself too. Later, when the headset caused pain, Ramsey spoke with supervisor Kam Marvel about obtaining another device. Marvel acknowledged her request by email on November 19, 2021, and copied an HR employee.  Twelve days later, Marvel recommended firing her.  That twelve-day gap mattered. The Fifth Circuit Court of Appeals held that it was “sufficiently close to establish the causal element for her prima facie case of retaliation.” Ramsey, 2026 U.S. App. LEXIS 23946, at *22. But timing alone could not establish pretext after San Jacinto College District offered legitimate performance reasons for the termination. The Fifth Circuit Court of Appeals held that the “combination of suspicious timing with other significant evidence of pretext[] can be sufficient to survive summary judgment.” Id. at *22-23.  Ramsey had more than timing. Marvel’s Final Corrective Action Notice attributed to her the complaint, “Why do I have to accommodate everyone? Nobody accommodates me.” Yet Marvel later declared that he did not know whether Ramsey had requested accommodations from the College for a disability when he recommended termination. Other evidence reflected his knowledge of her brain injury, migraines, intermittent FMLA leave, hearing issues, and headset request.  That put credibility squarely in play. The Fifth Circuit Court of Appeals held that a reasonable factfinder could find Marvel’s statement about his knowledge of Ramsey’s accommodation requests false and could conclude that his other statements about why she was fired were not the real reasons for the termination.  An employee should not have to choose between asking for a disability accommodation and keeping a target off their back.  Practical Tip: Make a disability accommodation request in writing and connect the requested change to the specific limitation caused by your medical condition. Preserve that request, the employer’s response, and later discipline because those records can establish who knew about the disability accommodation, when they knew it, and whether a later claim of ignorance or poor performance is credible.  Best Medical Accommodation At Work Attorney Blogs on Point: 

Can My Employer Avoid Disability Discrimination Liability If The Final Decisionmaker Did Not Know About My Disability?

Not necessarily. An employer cannot always defeat a disability discrimination claim simply by arguing that the person who formally approved the termination did not know about the employee’s disability. Employment decisions are often built by more than one person. When a supervisor with discriminatory animus influences the decisionmaker and causes the adverse action, the employer may still face liability under what employment law calls the cat’s paw theory.  The Fifth Circuit Court of Appeals held that the theory applies when the employee shows “(1) that a co-worker exhibited discriminatory animus, and (2) that the same co-worker possessed leverage, or exerted influence, over the titular decisionmaker.” Ramsey, 2026 U.S. App. LEXIS 23946, at *19. The employee must also show that the biased person’s conduct was a proximate cause of the ultimate employment action.  San Jacinto College District had a seemingly clean defense. Chancellor Brenda Hellyer was the final decisionmaker. She testified that she did not know about Ramsey’s disability when she initially approved the termination. If knowledge stopped with the person whose name appeared at the end of the process, the employer’s argument would have considerable force.  But Ramsey’s termination did not begin with Hellyer. Marvel supervised Ramsey, documented her alleged performance deficiencies, authored the November 4 Final Corrective Action Notice, and recommended her termination on December 1. The next day, Vice Chancellor Teri Zamora forwarded that recommendation to Hellyer, who approved it.  Marvel’s knowledge was disputed. He declared that he did not know whether Ramsey had requested disability accommodations when he recommended termination. Yet his notes referred to her brain injury. The record contained communications involving her migraines, intermittent FMLA leave, hearing issues, and headset request. His Final Corrective Action Notice even attributed to Ramsey the complaint, “Why do I have to accommodate everyone? Nobody accommodates me.”  That credibility dispute belonged to a jury. The Fifth Circuit Court of Appeals held that a reasonable factfinder could disbelieve Marvel’s claim that he lacked knowledge of Ramsey’s disability accommodation requests. And because Marvel recommended termination, the Fifth Circuit Court of Appeals held that a reasonable factfinder could conclude his recommendation caused Ramsey’s firing.  An employer cannot necessarily insulate a discriminatory termination by putting an uninformed decisionmaker at the end of the chain.  That principle changes what an employee and employment lawyer should investigate in a wrongful termination case. The relevant question is not merely, “Who signed off on my firing?” It is also: Who built the case for firing me? Who supplied the allegations? Who wrote the corrective actions? Who recommended termination? And what did those people know about the employee’s medical condition or disability accommodation?  Practical Tip: If you suspect disability discrimination, preserve communications with every supervisor involved in your discipline, not just the person who ultimately fired you. Identifying who created the write-ups, supplied information, recommended termination, and knew about your medical condition or disability accommodation can help an attorney determine whether a biased supervisor influenced the final decision and caused the wrongful termination.  Best Wrongful Termination Law Firm Blogs on Point: 
  •  

What Should I Look For In An Employment Lawyer If I Was Wrongfully Fired Because Of A Medical Condition? 

If you were wrongfully fired after requesting a disability accommodation, using FMLA leave, or dealing with a medical condition at work, you need an employment lawyer who knows how to attack the employer’s story, not merely repeat your side of it. The best employee-side attorney will want the performance reviews from before the dispute, the write-ups that came after, the accommodation requests, FMLA records, emails, texts, termination documents, and the names of everyone who helped make the decision. Why? Because disability discrimination and wrongful termination cases are often won by exposing contradictions: who knew what, when they knew it, what suddenly changed, and whether the employer’s carefully documented “performance” explanation survives comparison with the actual record.  Spitz, The Employee’s Law Firm is one of the largest law firms in the United States dedicated to employee rights. That gives our attorneys the resources to investigate employment law claims while still treating the employee like a person whose career and livelihood matter. Our lawyers have substantial trial experience and a history of fighting employers in discrimination, retaliation, FMLA, disability accommodation, and wrongful termination cases. We offer a free initial consultation and a no-fee guarantee, so an employee can speak with an attorney about what happened without paying just to find out whether there may be a claim. If your employer suddenly discovered “performance problems” after learning about your medical condition, approving intermittent FMLA leave, or receiving a disability accommodation request, call Spitz and let an employment lawyer examine whether performance was really the reason you were fired. 

FAQs About Disability Discrimination, FMLA, And Wrongful Termination 

[box] Can An Employee Be Wrongfully Fired Because Of A Medical Condition?  Yes. An employee may have a wrongful termination claim when a medical condition qualifies for legal protection and the employer fires the employee because of disability discrimination or protected activity. An employer may still discipline an employee for legitimate reasons, but labeling the reason “performance” does not automatically defeat a discrimination or retaliation claim.  Can Poor Performance Defeat A Disability Discrimination Claim?  Not automatically. An employer can identify poor performance as a legitimate reason for termination, but an employee may challenge that explanation as pretext. Evidence such as inconsistent performance reviews, contradictory explanations, omitted medical context, disputed facts, or credibility problems can support an argument that performance was not the real reason for the wrongful termination.  Can An Employer Retaliate Against An Employee For Requesting A Disability Accommodation?  No. Requesting a reasonable disability accommodation under the ADA is protected activity. An employee who suffers an adverse employment action after requesting a disability accommodation may have a retaliation claim when the evidence supports a causal connection and, after the employer offers a legitimate reason, supports a finding of pretext and the required retaliatory causation.  Can An Employer Retaliate Against An Employee For Using FMLA Leave?  No. An employer cannot lawfully retaliate against an employee for protected FMLA activity. If an employer claims the employee was fired for performance problems, evidence concerning timing, inconsistencies, credibility, and the employer’s knowledge of the FMLA activity may become relevant to whether the stated reason was pretext.  What Is Intermittent FMLA Leave For A Medical Condition?  Intermittent FMLA leave can involve approved FMLA leave for recurring medical needs rather than one continuous absence from work. The uploaded decision illustrates this with approved ongoing intermittent leave that was later revised to include migraine flareups and communications concerning physician appointments.  Does Close Timing Prove FMLA Retaliation Or Disability Discrimination?  Not by itself at the pretext stage. The Fifth Circuit Court of Appeals held that temporal proximity alone was insufficient there, but suspicious timing combined with other significant evidence of pretext can allow a claim to survive summary judgment.  Can An Employer Avoid Disability Discrimination Liability If The Final Decisionmaker Did Not Know About The Disability?  Not necessarily. Under the cat’s paw theory discussed by the Fifth Circuit Court of Appeals, an employer may face liability when a person with discriminatory animus influences the ultimate decisionmaker and that person’s conduct proximately causes the adverse employment action. [/box] Employment Lawyer Disclaimer  This employee rights, workplace discrimination, disability discrimination, disability accommodation, FMLA, intermittent leave, wrongful termination, and employment law blog provides general information only and should not be taken as legal advice. Every employee, employer, medical condition, discrimination claim, FMLA issue, and termination involves different facts and legal issues, and an employee who believes they were wrongfully fired or subjected to disability discrimination, retaliation, denial of a disability accommodation, interference involving intermittent FMLA leave, or other wrongful termination should consult with a qualified employment lawyer or attorney for advice about their specific situation. No lawyer or attorney can promise that any employment law claim will produce a particular result, and Spitz, The Employee’s Law Firm makes no promises or guarantees regarding the outcome of any discrimination, FMLA, disability accommodation, or wrongful termination matter. Reading this blog, contacting the firm, or receiving general information does not create an attorney-client relationship. This blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Job Force Leave To Deny Disability Accommodation?]]> https://www.calltherightattorney.com/?p=263296 2026-08-06T16:20:20Z 2026-08-06T16:20:20Z Employee sitting at home after being placed on unpaid medical leave while vacant jobs remain available, illustrating disability accommodation under the ADA

Why The ADA May Require Reassignment Instead Of Leave 

Some employers have a simple solution when an employee needs a disability accommodation: keep the employee off the payroll instead. No termination. No reassignment. Just unpaid leave that stretches from weeks into months while open jobs come and go. That strategy may seem easier for an employer, but Americans with Disabilities Act (“ADA”) does not always permit it. In fact, it might support a claim for disability discrimination  That was the fight in Dieng v. Orkin, LLC, 2026 U.S. App. LEXIS 23480 (4th Cir. 2025). After suffering work-related injuries, Mamadou Dieng repeatedly sought a disability accommodation that would allow him to return to work. According to the opinion, he identified vacant positions he believed he could perform and continued asking to return instead of remaining on unpaid leave. Orkin disagreed that reassignment was required and kept him on leave while the dispute continued. The district court granted summary judgment for the employer, but the United States Court of Appeals for the Fourth Circuit revived significant portions of the case. The Fourth Circuit held that an employer cannot simply decline to reassign a qualified employee to an available position and instead keep that employee on indefinite unpaid leave if reassignment may be a reasonable disability accommodation. The Court also addressed whether Dieng was required to file a new EEOC charge after his employment ended while his earlier administrative charge remained pending.  Let’s jump in and see what we can learn from Dieng. 

Legal Takeaways 

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  • An employer may violate the ADA by declining to reassign a qualified employee to an available position and instead keeping the employee on indefinite unpaid leave. 
  • Whether reassignment was a reasonable disability accommodation often depends on disputed facts that cannot be resolved at summary judgment. 
  • An employee who is fired while an earlier administrative charge is pending may not necessarily have to file a new EEOC charge before pursuing certain later claims, depending on the circumstances addressed by the opinion. 
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Can My Employer Keep Me On Leave Instead Of Reassigning Me To An Open Job?

Usually, no. The ADA requires an employer to provide a reasonable accommodation unless doing so would impose an undue hardship. One reasonable accommodation expressly recognized by the statute is “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B). To prove a failure-to-accommodate claim, an employee must show “(1) that he was disabled; (2) that [the employer] was on notice of his disability; (3) that he was able to perform the essential functions of his position (or his desired position) with or without a reasonable accommodation; and (4) that [the employer] failed to make such an accommodation.” Dieng, 2026 U.S. App. LEXIS 23480, at *13-14.  The Fourth Circuit then addressed the question at the heart of the case: “whether it is consistent with the ADA for an employer to decline to reassign a disabled employee to an available position he would be able to perform, and instead to keep the employee on indefinite, unpaid leave.” The Court answered with a direct holding: “We hold that it is not.” Dieng, 2026 U.S. App. LEXIS 23480, at *13.  That holding mattered because Orkin did not argue that it created a new position for Dieng. The dispute was whether vacant customer service and sales positions existed that he could perform within his medical restrictions. The record contained evidence that Dieng repeatedly requested light-duty work, his physician cleared him for less physically demanding work, and Orkin later filled multiple customer service and sales positions without contacting him. Hunter even testified he knew of no reason Dieng could not perform a customer service position. Dieng, 2026 U.S. App. LEXIS 23480, at *5-10, *15-17.  Orkin argued that indefinite unpaid leave was a reasonable accommodation. The Fourth Circuit disagreed that the record entitled Orkin to judgment as a matter of law. Viewing the evidence in the light most favorable to Dieng, the Court held that genuine disputes of material fact existed as to whether he could perform the essential functions of the positions he requested and whether Orkin failed to provide a reasonable accommodation by refusing to reassign him. Dieng, 2026 U.S. App. LEXIS 23480, at *14-24. Because those disputes belonged to a jury—not a judge—the Fourth Circuit vacated the district court’s grant of summary judgment on the failure-to-accommodate claim and remanded the case for trial. Practical Tip: If your employer leaves you on unpaid leave after you request a disability accommodation, ask whether there are vacant positions you can perform within your medical restrictions. If the employer ignores those requests while filling open jobs, those facts may become powerful evidence that reassignment—not leave—was the reasonable accommodation.  Best Workplace ADA Accommodation Attorney Blogs on Point: 

Can My Employer Ignore My Requests For A Disability Accommodation?

No. An employer does not satisfy the ADA by simply receiving a request for a disability accommodation and doing nothing. Once an employee communicates a disability and requests an accommodation, the employer has a duty to engage in the interactive process—a good-faith dialogue designed to identify an effective accommodation. The Fourth Circuit held that the interactive process “giv[es] employers and employees a chance to work together to figure out what accommodation, if any, would be reasonable and not unduly burdensome.” Dieng, 2026 U.S. App. LEXIS 23480, at *12 (quoting Tarquinio v. Johns Hopkins Univ. Applied Physics Lab). The Court further held that an employer’s duty “is triggered when an employee communicates [his] disability and desire for an accommodation—even if the employee fails to identify a specific, reasonable accommodation.” Id. at *22 (quoting Jacobs v. N.C. Admin. Offs. of the Cts.). According to the record, Dieng did far more than simply ask once. He texted his branch manager after his physician released him to light-duty work. When that message went unanswered, he followed up by email. His manager responded only that someone from the risk department would contact him. No one ever did. Dieng later underwent a functional capacity evaluation, provided the results to Orkin, retained counsel, had his attorney send written requests asking to be notified when light-duty work became available, and personally followed up again. Even then, Hunter responded only that he was unaware of any light-duty positions. Dieng, 2026 U.S. App. LEXIS 23480, at *5-10.  The employer’s defense was that it had reasonably accommodated Dieng by allowing him to remain on unpaid leave. The Fourth Circuit rejected that reasoning on this record. The Court pointed to evidence that no one at Orkin attempted to discuss Dieng’s restrictions, contacted his physicians, responded to his attorney’s requests, or explored possible accommodations. Holding that a reasonable jury could conclude Orkin failed to engage in the interactive process in good faith, the Court wrote that “a reasonable jury could readily conclude that Orkin ignored Dieng’s repeated requests to return to work in a light-duty position rather than engaging in the interactive process.” Dieng, 2026 U.S. App. LEXIS 23480, at *22-24.  The Fourth Circuit did not decide that Orkin violated the ADA. It decided that the evidence was strong enough for a jury to decide. Because reasonable jurors could conclude that Orkin ignored repeated accommodation requests instead of engaging in the interactive process required by the ADA, the Court vacated summary judgment on the failure-to-accommodate claim and remanded the case for trial.  Practical Tip: If your employer stops responding after you request a disability accommodation, continue making your requests in writing and keep copies of every communication. A timeline showing repeated requests and little or no response can become compelling evidence that the employer failed to engage in the interactive process required by the ADA.  Best ADA Lawyer Blogs on Point: 

Do I Have To File A New EEOC Charge If I’m Fired While My First One Is Pending? 

Usually, yes. If you are fired after filing your first administrative charge, that charge cannot describe a termination that had not happened yet. Depending on the circumstances, you may need to amend your pending charge or file a new one before you can bring a wrongful termination claim in court.  That procedural rule cost Ibrahima Dieng one of his claims. Before filing an ADA lawsuit, an employee must first exhaust administrative remedies. The United States Court of Appeals for the Fourth Circuit held that “[a] plaintiff’s claims in his judicial complaint must be reasonably related to the claims alleged in his administrative charge or must be expected to follow from a reasonable administrative investigation of the claims alleged in the charge.” Dieng v. Orkin, LLC, 2026 U.S. App. LEXIS 23480, at *25-26.  Dieng’s administrative charges alleged that Orkin failed to provide him with a disability accommodation. They did not allege that Orkin unlawfully terminated him because of his disability. They could not. Both his original charge and his amended charge were filed before he resigned. The Fourth Circuit held that “[n]either Dieng’s original charge nor his amended charge could thus allege unlawful termination.” Dieng, 2026 U.S. App. LEXIS 23480, at *26. Because his termination claim was not included in those charges and was not reasonably expected to grow out of the administrative investigation, the Court held that he failed to exhaust his administrative remedies. The result was harsh but straightforward: the Court affirmed summary judgment on his wrongful termination claim without ever deciding whether a jury would have believed it.  That is what makes this part of the opinion so frustrating. The Fourth Circuit acknowledged that keeping an employee on a lengthy, indefinite unpaid leave “may support a claim of constructive discharge.” Dieng, 2026 U.S. App. LEXIS 23480, at *25. In other words, the Court recognized that Dieng had a legal theory worth discussing. But because the procedural requirements were not met, the Court never answered whether Orkin had, in fact, constructively discharged him. It affirmed dismissal of that claim while remanding the separate failure-to-accommodate claim for a jury to decide.  Cases are won on facts, but they can be lost on procedure. That is why having an experienced employment lawyer from the beginning matters. Employment law is full of deadlines, administrative requirements, and procedural rules that can quietly eliminate a claim before a jury ever hears the evidence. The best attorney is not just someone who knows how to prove discrimination. The best lawyer knows how to preserve every claim so the fight is decided on the facts instead of a procedural technicality.  Practical Tip: If your employer fires you or takes another serious adverse action after you have already filed an administrative charge, tell your employment lawyer immediately. A new act of discrimination or retaliation often requires additional procedural steps, and missing them can keep even a strong claim from ever reaching a jury.  Best Wrongful Termination Law Firm Blogs on Point: 

When Should I Call An Employment Lawyer About Disability Discrimination?

The answer is earlier than most employees think. Many people wait until they have been fired. Others try to handle accommodation requests themselves, assuming they can always hire a lawyer later if things get worse. Dieng shows why that can be a costly mistake. One claim survived because the evidence created genuine disputes for a jury. Another claim never reached a jury because of a procedural requirement. Good cases are not won by strong facts alone. They also require careful strategy from the very beginning.  That is why employees across the country turn to Spitz, The Employee’s Law Firm. As one of the largest law firms in the United States dedicated exclusively to protecting employee rights, Spitz has the resources, experience, and trial record to take on employers of every size. Every case begins with a free consultation, and our No Fee Guarantee means you do not pay attorney fees unless we recover for you. We know that most employees have never been through the legal system before. Our job is not just to fight discrimination, wrongful termination, disability discrimination, and disability accommodation cases. It is to guide you through every step, preserve every viable claim, avoid procedural pitfalls, and build the strongest case possible. If you believe your employer violated your rights, don’t wait until an avoidable mistake limits your options. Contact Spitz, The Employee’s Law Firm today and let us help you protect your future.  I intentionally tied this section back to Dieng rather than making it a generic advertisement. The lesson is concrete: one claim was revived because the evidence was there; another was lost because of procedure. That makes the call to action feel earned rather than sales-driven. 

Frequently Asked Questions 

[box] What Is The Interactive Process Under The ADA? The interactive process is the good-faith dialogue between an employee and employer to identify an effective reasonable accommodation. Once an employee communicates a disability and requests an accommodation, both sides should exchange information and work together to determine whether an effective accommodation is available.  What Is A Reasonable Accommodation Under The ADA? A reasonable accommodation is a workplace adjustment that enables a qualified employee with a disability to perform the essential functions of the job, absent an undue hardship. Depending on the circumstances, it may include modified duties, schedule changes, assistive devices, or reassignment to a vacant position.  When Does The ADA Require Reassignment To A Vacant Position? Reassignment may be required when a qualified employee can no longer perform the current position because of a disability but can perform the essential functions of a vacant position with or without a reasonable accommodation. Whether reassignment is required depends on the facts of each case.  What Are The Elements Of An ADA Failure-To-Accommodate Claim? To establish a failure-to-accommodate claim, an employee generally must prove: (1) a disability; (2) the employer knew of the disability; (3) the employee could perform the essential functions of the position sought with or without a reasonable accommodation; and (4) the employer failed to provide a reasonable accommodation.  What Are Essential Job Functions Under The ADA? Essential functions are the fundamental duties of a position, not every task listed in a job description. Courts examine the actual work performed, the employer’s judgment, written job descriptions, and other evidence to determine whether a function is truly essential.  Can An Employer Choose A Different Accommodation Than The One Requested? Generally, yes. However, the accommodation selected must be effective. An ineffective accommodation is not a reasonable accommodation under the ADA. [/box] Employment Lawyer Disclaimer  This employment law, disability discrimination, disability accommodation, wrongful termination, and employee rights blog is provided for general informational purposes only and should not be considered legal advice. Every employee, employer, workplace, and claim is different, and the outcome of any disability discrimination, wrongful termination, or employment law matter depends on its specific facts and the applicable law. Reading this blog does not create an attorney-client relationship with Spitz, The Employee’s Law Firm or any of its attorneys or lawyers. No promises or guarantees are being made about the outcome of any claim or lawsuit. If you believe you have been wrongfully fired, denied a disability accommodation, or experienced discrimination in the workplace, you should consult with a qualified employment lawyer or attorney to obtain legal advice tailored to your individual circumstances. This blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can I Be Fired While On FMLA As Part of A RIF?]]> https://www.calltherightattorney.com/?p=263292 2026-08-04T17:53:11Z 2026-08-04T17:53:11Z Employee packing personal belongings after being laid off during FMLA medical leave following a reduction in force.

When A Reduction In Force Is Legal—And When It Is Wrongful Termination

FMLA. Medical leave. Layoff. Few words create more panic for an employee than hearing, “Your position has been eliminated,” while still on protected medical leave. It feels like wrongful termination and retaliation. Sometimes it is. Sometimes the employer truly eliminated the position because the business no longer needed it. The hard part—and the question that decides many employment law cases—is proving which explanation is true.  The United States Court of Appeals for the Eighth Circuit confronted that question in Knight v. Cambria Co., LLC, No. 25-3464, 2026 U.S. App. LEXIS 22335 (8th Cir. July 28, 2026). Anthony Knight took approved leave under the Family and Medical Leave Act (“FMLA”) after his father's death left him struggling with depression. Approximately six weeks later, while he remained on medical leave, his employer eliminated his position as part of a claimed reduction in force. Knight believed he had been wrongfully fired for exercising his FMLA rights. Cambria responded that declining production meant it no longer needed two process engineering technicians, retained the more senior technician, and redistributed Knight's work instead of hiring a replacement. The Eighth Circuit Court of Appeals held that this undisputed evidence established a legitimate business reason for the termination and that Knight failed to produce sufficient evidence that the reduction in force was a pretext for FMLA discrimination or that his termination was connected to his medical leave. The court therefore affirmed summary judgment on both his FMLA discrimination and interference claims.  

Legal Takeaways

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  • An employer may lawfully include an employee on FMLA or medical leave in a legitimate reduction in force. To establish wrongful termination, the employee must produce evidence that the stated business reason was a pretext for discrimination or that FMLA leave actually motivated the decision.  
  • Being wrongfully fired during medical leave does not, by itself, establish an FMLA violation. Courts examine whether the employer's explanation is supported by the evidence or whether it conceals unlawful discrimination.  
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Can My Employer Include Me In A Reduction In Force While I Am On FMLA Leave? 

Yes. An employer may lawfully include an employee on FMLA or medical leave in a legitimate reduction in force. The dividing line is straightforward: eliminating a position because the business no longer needs it is lawful; eliminating it because the employee exercised FMLA rights is wrongful termination. The FMLA protects an employee's right to take leave—not a position that would have disappeared regardless. Knight held that “an employee who requests FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than [the employee] did before taking the leave.” 2026 U.S. App. LEXIS 22335, at *19–20.  That distinction decided Knight. After his father's death, Anthony Knight struggled with depression. His supervisor suggested that he take FMLA leave, and Cambria approved the request. About six weeks later, while Knight remained on approved medical leave, the company informed him that his position had been eliminated. To almost any employee, those facts look like wrongful termination. The law, however, required Knight to prove something more: that the reduction in force was not the real reason he lost his job.   Cambria offered evidence that the termination had nothing to do with FMLA. The decisionmaker testified that production had slowed, plant leadership had already begun evaluating ways to reduce headcount, and the company no longer needed two process engineering technicians. Other witnesses corroborated that testimony. Cambria retained the more senior technician, redistributed Knight's work to other departments, and never hired a replacement. Knight held that “a reduction-in-force for reducing costs and improving efficiency” is a legitimate, nondiscriminatory reason for discharge and concluded that the undisputed record supported Cambria's explanation.   The fact that Cambria never replaced Knight mattered. If an employer claims a reduction in force but immediately hires someone else to perform the same job, the business justification begins to unravel. That evidence did not exist here. Instead, the record showed Cambria closed an existing job posting without interviewing anyone and redistributed Knight's work after eliminating his position. Those facts reinforced the conclusion that the company eliminated a job—not simply the person holding it.   A real reduction in force eliminates positions. A fake one eliminates people.  That is where the best employment law attorney or lawyer begins the investigation. Did the work actually disappear? Did someone quietly assume the same duties? Did the employer continue hiring for the position after claiming it was eliminated? Those questions often determine whether a reduction in force is a legitimate business decision or evidence of wrongful termination.  Practical Tip: If your employer says your job was eliminated during medical leave, immediately preserve job postings, internal announcements, LinkedIn hiring notices, and organizational charts. Those documents often reveal whether the position truly disappeared or whether the employer simply replaced you under a different title.  Best FMLA Lawyer Blogs on Point: 

How Can I Prove My Employer's Reduction In Force Was Just An Excuse To Fire Me?

You prove it by exposing pretext. In employment law, pretext means the employer's stated reason for firing an employee is not the real one. That is the battleground in most wrongful termination cases. Knight held that the ultimate question is whether the evidence would allow a jury to conclude the employer intentionally discriminated because the employee exercised FMLA rights. Quoting the United States Supreme Court, Knight held: “It is not enough to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).  Knight argued Cambria's reduction in force was nothing more than a cover story. He pointed out that the company produced almost no contemporaneous documents showing a production slowdown or planned headcount reduction, even though its Chief Human Resources Officer testified that management ordinarily documented those decisions. He also challenged the accuracy of the OWBPA disclosure, questioned the decisionmaker's memory, and argued that changes to deposition testimony undermined credibility. Those arguments attacked Cambria's process. The problem was that they did not prove discriminatory motive.  Knight rejected those arguments for a simple reason. The Eighth Circuit Court of Appeals held that a federal court is not “a super-personnel department with authority to review the wisdom or fairness of business judgments made by employers.” A poorly documented decision, standing alone, does not establish wrongful termination. The missing link was evidence connecting Cambria's alleged deficiencies to Knight's FMLA leave. Without that connection, the court treated the alleged mistakes as imperfect business practices—not unlawful discrimination.  Knight's credibility attacks met the same fate. He argued the decisionmaker clarified testimony about knowing Knight was on FMLA, could not remember details about another employee identified in the reduction in force, and gave inconsistent deposition answers. But other witnesses corroborated the critical facts: production had slowed, management concluded one process engineering technician could handle the remaining workload, the more senior technician was retained, and Knight's work was redistributed rather than assigned to a replacement. The court concluded those disputes did not create a genuine issue of material fact.  Pretext is not about proving the employer was wrong. It is about proving the employer was lying.  That distinction separates suspicion from proof. The best employment law attorney or lawyer looks for evidence that the employer's explanation changed over time, conflicts with contemporaneous documents, or was applied differently to similarly situated employees who did not take FMLA or medical leave. Those are the facts that transform a questionable reduction in force into evidence of wrongful termination.  Practical Tip: If your employer says your layoff resulted from a reduction in force, preserve documents showing when the decision was made, who participated, and the criteria used to select affected employees. Those records often reveal whether the business explanation existed before your FMLA request or appeared only after your termination.  Best Medical Leave Attorney Blogs on Point: 

Can The Timing Of My Layoff Prove Wrongful Termination During Medical Leave? 

Sometimes. But Knight held that “mere coincidence of timing” is “rarely sufficient” to prove an employer violated the FMLA. An employee who is wrongfully fired during medical leave still must present evidence that the employer's stated reason was a pretext for discrimination. Suspicious timing may raise questions. It rarely answers them.  Knight had suspicious timing. He requested FMLA leave after his father's death, received approval, and approximately six weeks later—while still on approved medical leave—Cambria eliminated his position. That sequence naturally suggested a connection. Knight held, however, that courts measure timing from when the employer learned the employee planned to take FMLA leave, not from the date the leave was scheduled to end. Here, that interval was approximately six weeks.  The timeline alone was not enough because Cambria offered an independent explanation that predated Knight's leave. The record showed that production had already slowed, management had begun discussing reducing headcount before Knight requested FMLA, and company leaders concluded they no longer needed two process engineering technicians. Knight held that when a legitimate business reason develops during the same period, the significance of temporal proximity is substantially weakened.  Knight also argued that the managers who decided to terminate him knew he had requested FMLA leave. Knight rejected that argument, holding that “[m]ere knowledge” of protected leave is insufficient to establish pretext. Knowledge may create the opportunity to discriminate, but it does not prove discrimination actually occurred.  Timing starts the investigation. Evidence wins the case.  That is why the best employment law attorney or lawyer never relies on timing alone. The strongest wrongful termination cases combine suspicious timing with changing explanations, contradictory documents, inconsistent testimony, comparator evidence, or proof the claimed reduction in force was never genuine. Together, those facts can transform coincidence into evidence of discrimination.  Practical Tip: Create a timeline as soon as you believe you were wrongfully fired. Include when you requested FMLA, began medical leave, notified your employer, received performance feedback, learned of the reduction in force, and were terminated. A detailed timeline often exposes inconsistencies that become powerful evidence later.  Best Wrongful Termination Law Firm Blogs on Point: 

How Do I Find The Best Attorney After Being Fired During Medical Leave?

Every wrongful termination case begins with the same question: What really happened? A good employment law attorney does not assume an employer acted illegally simply because an employee was fired during FMLA or medical leave. The best lawyer digs into the evidence, tests the employer's explanation, and determines whether the claimed reduction in force was a legitimate business decision or a pretext for discrimination.  That is what Spitz, The Employee's Law Firm does every day. As one of the largest law firms in the United States dedicated exclusively to employees' rights, Spitz has the resources, experience, and courtroom success to investigate wrongful termination, FMLA, medical leave, and reduction in force claims. We offer a free initial consultation, and every accepted case is backed by our No Fee Guarantee. If you believe your employer wrongfully fired you during medical leave, contact Spitz, The Employee's Law Firm. An experienced attorney can evaluate the evidence, explain your rights, and determine whether your employer's explanation holds up under the law. 

Frequently Asked Questions 

[box] Can I Be Fired While On FMLA During A Reduction In Force?  An employer may include an employee on FMLA in a legitimate reduction in force if the position would have been eliminated regardless of the leave. The FMLA protects employees from discrimination because they took leave, not from lawful layoffs.  Does Medical Leave Protect Me From Wrongful Termination?  Medical leave does not guarantee that an employee cannot be terminated. An employer may eliminate a position for legitimate business reasons, but it cannot use medical leave or FMLA as a pretext to wrongfully fire an employee.  How Can I Tell If My Employer's Reduction In Force Was Real?  A legitimate reduction in force usually leaves objective evidence. An employer may eliminate positions, reduce headcount, redistribute work, or stop hiring. If the position is quickly refilled, the employer's explanation changes, or the same work continues under another title, those facts may support a wrongful termination claim.  What Is Pretext In An FMLA Wrongful Termination Case?  In employment law, pretext means the employer's stated reason for firing an employee is not the true reason. To prove wrongful termination, an employee must present evidence that the explanation is false and that FMLA, medical leave, or another protected activity actually motivated the termination.  Does My Employer Have To Prove A Reduction In Force Was Legitimate?  When defending a wrongful termination claim, an employer must identify a legitimate business reason for the reduction in force. An employee may challenge that explanation with evidence of inconsistent reasons, contradictory documents, changing testimony, or other facts showing the stated reason was pretextual.  What Evidence Helps Prove I Was Wrongfully Fired During Medical Leave?  The best evidence often includes internal emails, hiring records, organizational charts, performance evaluations, witness testimony, and documents showing the employer continued filling the same position after claiming it had been eliminated in a reduction in force. Those facts may help establish that the stated reason for the termination was not the real one.Employment. [/box] Employment Lawyer Disclaimer  This employee rights, employment law, FMLA, medical leave, reduction in force, and wrongful termination blog is provided for general informational purposes only and should not be construed as legal advice. Every employee, employer, workplace, and wrongful termination claim involves different facts, and the outcome of any employment law matter depends on the specific circumstances and applicable law. Reading this blog does not create an attorney-client relationship with Spitz, The Employee's Law Firm, and no promises or guarantees are being made regarding the outcome of any case. This blog is a legal advertisement. If you have questions about a potential FMLA, medical leave, reduction in force, or wrongful termination claim, you should consult a qualified employment lawyer or employment law attorney for advice regarding your specific situation. ]]>