Spitz, The Employee's Law Firm Spitz, The Employee’s Law Firm 2026-08-20T16:00:19Z 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[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: 
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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. ]]> by Spitz, The Employee's Law Firm <![CDATA[Yes, You Can Be Fired For Stealing Chicken Wings From Work]]> https://www.calltherightattorney.com/?p=263265 2026-07-28T19:37:18Z 2026-07-30T16:00:20Z Hospital employee requesting a disability accommodation before being wrongfully terminated, illustrating ADA disability discrimination, reasonable accommodation, and retaliation claims.

Why Claiming Disability Discrimination Will Not Block Termination For Theft 

Many disability discrimination and wrongful termination cases involve the sufficiency of a doctor’s note, missing medical documentation, or disagreements over the interactive process between an employee and employer.  This one begins—and ends—with chicken wings.  Only three days after being hired by a hospital as a cook and cashier, Jacqualine Jarju injured her ankle at work. She told management she needed time off to obtain medical treatment, and the hospital removed her from the work schedule until her ankle could be evaluated. About a month later, Jarju requested additional workplace accommodations for medical conditions that predated her employment. She asked for lifting restrictions, an ergonomic chair, and additional breaks. She also submitted a doctor’s note, but the note described her medical symptoms without explaining what accommodations were medically necessary. Human resources repeatedly asked her to obtain clarification from her physician. When her doctor later submitted letters requesting medical leave and restricting her to sedentary work for one month, the hospital assigned Jarju to duties she could perform while sitting.  Then came the chicken wings.  While working at the hospital’s security desk, Jarju watched as food was delivered for a patient. One bag contained chicken wings, and several wings spilled onto the counter. After cleaning up the mess, she placed the wings into her personal bag instead of leaving them for the patient or disposing of them. A security guard witnessed the incident and reported it to human resources. The hospital reviewed surveillance video, which showed Jarju placing the wings into her bag and leaving the building with them. When questioned, Jarju admitted taking the wings home but claimed she later threw them away because they were no longer safe to eat. The court record shows that this was not the first time she had been accused of taking food from the hospital. The employer terminated her employment for repeated food theft.  At this point, you are probably wondering what any of this has to do with disability discrimination or wrongful termination.  The answer is timing.  Although the hospital said it fired her for repeatedly taking food, Jarju argued that the real reason was that she had requested disability accommodations only weeks earlier. She sued under Americans with Disabilities Act (“ADA”), claiming the hospital failed to accommodate her disabilities by giving her a reasonable accommodation and retaliated against her for exercising her rights. The United States Court of Appeals for the Seventh Circuit rejected those claims, but in doing so explained several important lessons about disability accommodations, medical documentation, the interactive process, and when an employer may lawfully terminate an employee who has requested an accommodation. 

Key Takeaways 

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  • Requesting a reasonable accommodation does not prevent an employer from disciplining or terminating an employee for legitimate misconduct. 
  • Employers may request additional medical documentation as part of the ADA’s interactive process. 
  • The ADA requires a reasonable accommodation, not necessarily the employee’s preferred accommodation. 
  • Timing alone rarely proves disability discrimination or retaliation. 
  • Proving pretext is often the key to winning a disability discrimination or wrongful termination case. 
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Can I Be Fired After Requesting A Disability Accommodation At Work? 

Yes. An employer may fire an employee after the employee requests a reasonable accommodation under the Americans with Disabilities Act (ADA). However, an employer cannot lawfully terminate an employee because the employee requested a reasonable accommodation or because of the employee’s disability. If the employer has a legitimate, nondiscriminatory business reason for the termination, the discharge may be lawful. If that stated reason is merely a pretext for disability discrimination or retaliation, the employee may have a valid ADA claim.  That distinction is at the heart of many wrongful termination, disability discrimination, and ADA retaliation lawsuits. Employees often assume that being fired shortly after requesting a reasonable accommodation automatically proves discrimination. It does not. The law focuses less on when the termination occurred than on why the employer made the decision.  Employers remain free to make legitimate business decisions. They may discipline or terminate employees for misconduct, dishonesty, attendance problems, poor performance, safety violations, policy violations, or other lawful reasons. The ADA protects employees from discrimination—not from legitimate workplace discipline. Likewise, requesting a reasonable accommodation does not insulate an employee from the consequences of misconduct unrelated to the employee’s disability.  The critical question is whether the employer’s stated reason is genuine or merely a pretext. Employment lawyers use the term pretext to describe a false or dishonest explanation offered to conceal an unlawful motive. An employee may establish pretext by showing the employer’s explanation is inconsistent, unsupported by the evidence, changed over time, conflicts with company policy, or was applied differently to similarly situated employees. In many disability discrimination cases, proving pretext is the difference between winning and losing.  The district court summarized this principle succinctly: “Timing alone is rarely enough to establish causation. Suspicious timing ‘combined with additional evidence of pretext’ can justify denial of summary judgment.” Jarju v. St. John’s Hosp. of the Hosp. Sisters of the Third Ord. of St. Francis, No. 23-cv-3038, 2025 U.S. Dist. LEXIS 59875, at *10–11 (C.D. Ill. Mar. 31, 2025) (quoting Parker v. Brooks Life Sci., Inc., 39 F.4th 931, 937 (7th Cir. 2022)).  That principle decided Jarju. There was no dispute that requesting a reasonable accommodation is protected activity under the ADA or that termination constitutes an adverse employment action. Instead, the case turned on whether the hospital’s stated legitimate business reason for firing Jarju—repeated unauthorized removal of food from the hospital—was genuine or merely a pretext for disability discrimination or retaliation. The district court concluded that the evidence supported the employer’s explanation and that the intervening misconduct defeated any inference that Jarju’s accommodation request caused her termination. The Seventh Circuit affirmed.  Practical Tip: If you are fired after requesting a reasonable accommodation, don’t focus only on the timing of your termination. Carefully examine your employer’s stated reason for firing you. If the evidence shows that reason is false, inconsistent, or merely a pretext for disability discrimination or retaliation, you may have a strong ADA wrongful termination claim.  Best Disability Accommodation At Work Lawyer Blogs on Point: 

Can My Employer Ask For More Medical Information Before Approving A Disability Accommodation? 

Yes. Under the ADA, an employer may request reasonable medical documentation before approving a reasonable accommodation. When an employee’s disability, work restrictions, or requested accommodation are not obvious, the employer is entitled to obtain enough information to understand the employee’s limitations and determine whether the requested accommodation is medically necessary.  This is part of the ADA’s interactive process—the collaborative discussion between an employer and employee to identify an appropriate reasonable accommodation. The interactive process requires participation by both sides. Employees must provide sufficient medical information to support their requests, and employers must evaluate those requests in good faith.  The Seventh Circuit has described the interactive process as a “flexible give-and-take” between employer and employee. Gile v. United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000). Likewise, the district court emphasized that employees requesting nonobvious accommodations must support those requests with appropriate medical documentation:  “[E]mployees must make their employers aware of any nonobvious, medically necessary accommodations with corroborating evidence such as a doctor’s note . . . before an employer may be required under the ADA’s reasonableness standard to provide a specific modest accommodation that an employee requests.” Jarju v. St. John’s Hosp. of the Hosp. Sisters of the Third Ord. of St. Francis, No. 23-cv-3038, 2025 U.S. Dist. LEXIS 59875, at *12 (C.D. Ill. Mar. 31, 2025) (quoting Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 976 (7th Cir. 2009)).  That principle guided the hospital’s response in Jarju. Jarju’s initial doctor’s note identified several requested accommodations, but it did not explain why those accommodations were medically necessary. Instead of denying her request or ending the interactive process, the hospital repeatedly asked her physician to provide additional medical documentation clarifying her work restrictions and the need for the requested accommodations. The district court concluded that the hospital acted appropriately by seeking clarification before deciding whether the requested reasonable accommodations were required under the ADA.  Practical Tip: A vague doctor’s note is one of the most common reasons the interactive process stalls. Ask your healthcare provider to identify your specific work restrictions, explain why each requested reasonable accommodation is medically necessary, and describe how your disability affects your ability to perform your job. Clear medical documentation helps employers evaluate accommodation requests more quickly and reduces the likelihood of unnecessary disputes.  Best Disability Discrimination Attorney Blogs on Point: 

Can I Still Win A Disability Discrimination Case If My Employer Granted My Disability Accommodation? 

Yes. An employer does not automatically defeat a disability discrimination or failure-to-accommodate claim simply because it provided a reasonable accommodation. The real question is whether the accommodation satisfied the employer’s obligations under the ADA.  The ADA requires employers to provide a reasonable accommodation that enables a qualified employee to perform the essential functions of the job. It does not require an employer to provide the employee’s preferred accommodation, the most convenient accommodation, or every accommodation the employee requests. Instead, the employer must engage in the interactive process in good faith and offer an accommodation that is reasonable under the circumstances.  Whether an accommodation is reasonable depends on the facts. An employer may still violate the ADA by refusing to provide an available reasonable accommodation, unreasonably delaying the interactive process, ignoring medical restrictions, or offering an accommodation that does not enable the employee to perform the essential functions of the position. Conversely, when an employer seriously evaluates an accommodation request, works with the employee, and provides an effective accommodation supported by the medical evidence, a failure-to-accommodate claim becomes much more difficult to prove.  That distinction proved decisive in Jarju. After receiving sufficient medical documentation regarding Jarju’s ankle injury, the hospital temporarily reassigned her to sedentary work that complied with her physician’s restrictions while continuing to evaluate her remaining accommodation requests. The district court therefore concluded that “a reasonable jury could not find that St. John’s failed to accommodate Jarju’s requests for accommodation.” Jarju v. St. John’s Hosp. of the Hosp. Sisters of the Third Ord. of St. Francis, No. 23-cv-3038, 2025 U.S. Dist. LEXIS 59875, at *13 (C.D. Ill. Mar. 31, 2025). The Seventh Circuit affirmed.  The lesson is straightforward. The ADA guarantees employees a reasonable accommodation, not a perfect one. Courts evaluate whether the employer’s response effectively addressed the employee’s disability-related limitations—not whether the employee received every accommodation requested. When the evidence shows the employer participated in the interactive process and provided a reasonable accommodation, employees must identify something more than mere dissatisfaction with the employer’s decision to prevail on a failure-to-accommodate claim.  Practical Tip: If your employer provides a reasonable accommodation, don’t assume you no longer have an ADA claim. Instead, ask whether the accommodation actually addressed your disability-related limitations, whether your employer participated in the interactive process in good faith, and whether additional reasonable accommodations were improperly denied. Those questions—not simply whether an accommodation was offered—often determine whether a failure-to-accommodate claim succeeds.  Best Wrongful Termination Law Firm Blogs on Point: 

Should I Save Money By Handling My Wrongful Termination Case On My Own? 

You have the right to represent yourself in a disability discrimination, failure-to-accommodate, or wrongful termination lawsuit. The better question is whether doing so actually saves you money.  Employment lawsuits are among the most procedurally demanding cases in federal court. Success often depends less on whether discrimination occurred than on whether the employee can obtain evidence through discovery, take effective depositions, respond to motions for summary judgment, present admissible evidence, and prove that the employer’s stated legitimate business reason is merely a pretext for unlawful discrimination or retaliation.  Jarju demonstrates just how challenging these cases can become. She represented herself throughout the litigation and repeatedly asked the district court to appoint counsel. In her third motion, she explained that the “overwhelming legal complexities of her case” made it impossible for her to continue litigating effectively on her own. The district court nevertheless concluded that, based on her education, filings, and the limited pool of volunteer attorneys, she was competent to proceed without counsel. The Seventh Circuit affirmed that decision.  Jarju renewed that argument on appeal, explaining that “the complexity of the case, including written discovery, depositions, and a multi-issue motion for summary judgment, exceeded her capacity as a pro se litigant who lacks legal training.” Although the Seventh Circuit agreed those issues made the litigation more demanding, it concluded the district court had not abused its discretion by declining to recruit counsel.  Her experience highlights an important reality. Employment cases become significantly more complicated after a lawsuit is filed. Discovery deadlines, depositions, evidentiary objections, expert testimony, summary judgment briefing, and appellate issues can determine the outcome long before a jury ever hears the case. Even employees with strong facts can lose if they miss procedural requirements or fail to develop the evidence needed to prove discrimination or pretext.  Fortunately, there is no reason to face those challenges alone. Spitz, The Employee’s Law Firm offers a free initial consultation, no upfront costs, and our No Fee Guarantee, meaning you pay no attorney fees unless we recover money for you. You can have an experienced employment lawyer evaluate your disability discrimination, reasonable accommodation, retaliation, or wrongful termination claim without taking on additional financial risk.  For decades, Spitz has represented employees—and only employees—in employment law matters. As one of the nation’s largest employee-only employment law firms, our attorneys know how to uncover evidence through discovery, expose pretext, defeat summary judgment, and present compelling cases at trial. Whether your case involves a denied reasonable accommodation, failure to accommodate, ADA retaliation, or another form of workplace discrimination, we have the experience to help you navigate the legal process from start to finish.  Practical Tip: If you believe your employer discriminated against you because of your disability, denied a reasonable accommodation, retaliated against you for requesting one, or wrongfully terminated your employment, speak with an experienced employment lawyer as early as possible. Early legal advice can preserve evidence, avoid procedural mistakes, and maximize your chances of a successful outcome.  Best Employee’s Rights Attorney Blogs on Point: 

Frequently Asked Questions About Disability Discrimination, Reasonable Accommodations, and Wrongful Termination 

[box] Can My Employer Fire Me After I Request A Disability Accommodation?  Yes. An employer may fire an employee after the employee requests a reasonable accommodation under the Americans with Disabilities Act (ADA). However, an employer cannot lawfully terminate an employee because the employee requested a reasonable accommodation or because of the employee’s disability. If the employer has a legitimate, nondiscriminatory business reason—such as theft, dishonesty, serious misconduct, poor performance, attendance problems, or other workplace misconduct—the termination may be lawful. If the employer’s stated reason is false or merely a pretext for disability discrimination or retaliation, the employee may have a valid ADA claim. The critical issue is not when the employee was fired, but why the employer made the decision.  Can My Employer Ask For More Medical Information Before Approving A Disability Accommodation?  Yes. An employer may request reasonable medical documentation to understand an employee’s limitations and determine whether a requested reasonable accommodation is medically necessary. Requesting additional medical information is a normal part of the ADA’s interactive process and is not, by itself, evidence of disability discrimination or retaliation. Employees should provide clear medical documentation identifying their work restrictions, explaining why the requested accommodation is medically necessary, and describing how the disability affects their ability to perform their job.  What Is Pretext In A Disability Discrimination Case?  Pretext is a false or dishonest explanation an employer uses to hide an unlawful reason for an employment decision. In a disability discrimination, ADA retaliation, or wrongful termination lawsuit, an employee may prove pretext by showing the employer’s explanation is inconsistent, unsupported by the evidence, has changed over time, conflicts with company policies, or was applied differently to similarly situated employees. Proving pretext is often the key to showing that an employer’s stated legitimate business reason was actually a cover for unlawful disability discrimination or retaliation.  Does Receiving A Disability Accommodation Mean I Cannot Sue My Employer?  No. Receiving a reasonable accommodation does not automatically prevent an employee from bringing a disability discrimination or failure-to-accommodate claim under the ADA. An employer may still violate the law by denying additional reasonable accommodations, unreasonably delaying the interactive process, retaliating against an employee for requesting an accommodation, or terminating the employee because of the employee’s disability. Whether an employee has a valid ADA claim depends on the employer’s overall conduct and whether it fulfilled its obligations under the ADA—not simply on whether it provided some form of accommodation. [/box] Legal Advertisement. This employee’s rights blog is for general informational purposes only and is not legal advice. Reading this blog or contacting Spitz, The Employee’s Law Firm does not create an attorney-client relationship. Every disability discrimination, reasonable accommodation, ADA retaliation, and wrongful termination case is different, and past results do not guarantee future outcomes. If you believe your employer discriminated against you because of a disability, denied a reasonable accommodation, retaliated against you for requesting an accommodation, or wrongfully terminated your employment, consult an experienced employment lawyer about your specific situation. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Job Give Me A Disability Accommodation That Doesn’t Help?]]> https://www.calltherightattorney.com/?p=263263 2026-07-28T19:21:16Z 2026-07-28T19:21:16Z Employee meeting with a human resources representative to discuss a reasonable disability accommodation under the Americans with Disabilities Act (ADA).

Why Ineffective Accommodations May Violate The ADA 

A disability accommodation that doesn’t accommodate isn’t an accommodation. It’s just activity disguised as compliance. Americans with Disabilities Act (“ADA”) is not satisfied simply because an employer does something after an employee requests a disability accommodation. The law requires employers to take reasonable steps that actually help employees with disabilities perform their jobs. Doing something is not the same as accomplishing something.  Imagine throwing a drowning man a life vest filled with lead. Sure, you threw him a life vest. Sure, you did something. Sure, you can even tell everyone you tried to help. But he still drowned. Nobody would call that a rescue.  The same principle applies to workplace disability accommodations. If the accommodation does not actually help the employee overcome disability-related limitations, it likely will not satisfy the ADA. And, when an employer terminates a disabled employee after an ineffective accommodation, it is fair to call that a wrongful termination.  That was the central issue before the United States Court of Appeals for the Second Circuit in Raymond v. 1199SEIU National Benefit Fund. Sean R. Raymond Sr. developed a serious vein condition that prevented him from driving continuously for more than thirty minutes. His employer removed four of the most distant facilities from his route, but that still left numerous assignments requiring longer uninterrupted drives. Raymond repeatedly asked for different ADA accommodations that would comply with his doctor’s restrictions. The United States Court of Appeals for the Second Circuit held that the district court applied the wrong legal standard. Sure, the employer did something. But the legal question was whether it did something that actually worked. Because reasonable jurors could disagree about whether the modified route effectively accommodated Raymond’s disability, the court vacated summary judgment and sent the case back for further proceedings. 

Legal Takeaways 

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  • The United States Court of Appeals for the Second Circuit clarified several important principles under the Americans with Disabilities Act (ADA): 
  • An employer does not comply with the ADA simply by offering a disability accommodation. The accommodation must be effective. 
  • An employer should seriously evaluate an employee’s requested disability accommodation through an individualized assessment rather than making assumptions. 
  • If a disability accommodation does not work, the ADA contemplates continuing the accommodation process to determine whether another reasonable accommodation is available.
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What Happens When My Employer Gives Me An ADA Accommodation That Doesn’t Actually Accommodate Me?

An employer cannot satisfy the ADA by merely checking the “accommodation” box. A reasonable accommodation must actually enable an employee with a disability to perform the essential functions of the job.  A reasonable accommodation is a change to the workplace or the way a job is performed that enables a qualified employee with a disability to perform the essential functions of the position. Essential functions are the fundamental duties of the job—not marginal or occasional tasks. The goal is not simply to provide assistance, but to provide an accommodation that works.  That principle was at the heart of the Second Circuit’s decision in Raymond. The employee suffered from chronic venous insufficiency, a condition that caused pain and swelling in his legs. His physician restricted him from prolonged standing, sitting, walking, or driving without elevating his legs. In response, the employer removed four distant facilities from his route but continued assigning him to an area that still required lengthy periods of driving. The employee argued the accommodation did not actually address his medical restrictions. Raymond at *6–10.  The United States Court of Appeals for the Second Circuit agreed that simply providing an accommodation does not end the analysis. The appellate court held: “The hallmark of a reasonable accommodation is effectiveness.” Id. at 21. The Second Circuit further explained: “To satisfy the ADA, an ‘accommodation need not be perfect or the one most strongly preferred by the [plaintiff], but it still must be effective.’” Id. at 21–22.  In other words, employers are not required to provide the employee’s preferred accommodation. They are required to provide one that actually enables the employee to perform the job despite the disability.  The appellate court also rejected the idea that any workplace modification automatically satisfies the ADA, explaining that an ineffective adjustment is no accommodation at all. Because evidence suggested Raymond continued driving for more than thirty minutes at a time despite his medical restrictions, a reasonable jury could conclude the employer’s accommodation failed to address his disability. Id. at 22–26.  The lesson extends far beyond one employee or one employer. A disability accommodation should be judged by its results, not by the employer’s effort. An accommodation that exists only on paper may still violate the ADA if it fails to address the employee’s disability-related limitations.  Practical Tip: If your employer provides a disability accommodation that still prevents you from performing your job because of your medical restrictions, explain specifically why it is ineffective. The ADA focuses on whether the accommodation actually works—not simply whether your employer offered one.  Best Workplace Disability Accomodation Lawyer Blogs on Point: 

Can My Employer Legally Deny My Disability Accommodation Request Without Evaluating It? 

No. The ADA requires employers to conduct an individualized assessment of an employee’s disability and the requested accommodation. Employers cannot simply reject a request based on assumptions or because they have already decided what accommodation, if any, they are willing to provide.  That individualized assessment is accomplished through the ADA’s interactive process. The interactive process is a good-faith discussion between an employer and an employee to determine whether a reasonable disability accommodation is available. The employee explains the disability and work-related limitations, while the employer evaluates the request, gathers any necessary information, considers reasonable alternatives, and works with the employee to identify an effective accommodation.  The United States Court of Appeals for the Second Circuit found that the district court failed to properly evaluate evidence supporting Raymond’s requested accommodation. The appellate court noted evidence that Area J involved less driving than Area I and that outreach coordinators were regularly reassigned among different geographic areas. The record also included Raymond’s testimony that Area J would reduce his driving and allow him to stop and elevate his legs when necessary. Raymond at *27–30.  The Second Circuit also emphasized that an employee bears only a modest burden when proposing a reasonable accommodation. At the summary judgment stage, an employee “need only show that an ‘accommodation’ seems reasonable on its face.” Id. at 22–23 (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002)). Likewise, the employee has only a “light burden of production” in demonstrating that a proposed accommodation is facially reasonable. Id. at 30 (quoting McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 n.3 (2d Cir. 2009)).  The lesson for employees is straightforward. Your employer does not have to approve every requested disability accommodation. However, it should evaluate your request based on your individual medical restrictions and job duties rather than relying on assumptions or blanket policies. The ADA requires an individualized inquiry because every disability, every job, and every accommodation request is different.  Practical Tip: When requesting a disability accommodation, explain not only what you are requesting, but why it will enable you to perform the essential functions of your job. The more clearly you connect your medical restrictions to your proposed accommodation, the stronger your request will be.  Best Disability Discrimination Law Firm Blogs on Point: 

Can I Ask For A Different Disability Accommodation If My Employer’s First One Doesn’t Work?

Absolutely, yes. A disability accommodation is not permanent. If your medical condition changes or your employer’s accommodation proves ineffective, you may request a different reasonable accommodation.  That is exactly what happened in Raymond.  The employer initially attempted to accommodate Raymond by removing the four most distant facilities from his route. But Raymond’s condition worsened. His physician later imposed a stricter restriction, stating that Raymond should “absolutely avoid prolonged continuous standing, walking, sitting or driving without elevating his legs for more than thirty minutes continuously.” Raymond at *9–10.  Rather than accepting an accommodation that no longer met his medical needs, Raymond notified his employer that it was ineffective. He requested reassignment to Area J, asked the employer to reconsider its decision, questioned whether it had followed its own accommodation policy, and proposed other reasonable accommodations, including reducing long-distance driving assignments or transferring him to a position requiring less driving. Id. at *10–13.  The employer refused to change its position. It maintained that Raymond’s restrictions prevented him from performing the essential functions of the Outreach Coordinator position and did not meaningfully address the alternative accommodations he proposed. Id. at *12–13.  The United States Court of Appeals for the Second Circuit held that the district court overlooked this evidence. The Second Circuit explained that Raymond proposed more than one accommodation and that the record contained evidence supporting the facial reasonableness of several of those requests. The appellate court specifically pointed to evidence that Area J involved less driving than Area I and that outreach coordinators were regularly reassigned among different geographic areas. Id. at *27–30.  The lesson is simple. A disability accommodation should evolve if an employee’s disability or medical restrictions change. The ADA does not require an employee to accept an accommodation that no longer works simply because the employer tried once. If circumstances change, the accommodation process should continue until an effective reasonable accommodation is identified or no reasonable accommodation is available.  Practical Tip: If your disability accommodation stops working, tell your employer immediately. Explain what has changed, provide updated medical information if appropriate, and describe why a different accommodation will better address your disability-related limitations.  Best ADA Attorney Blogs on Point: 

What Should I Do If My Employer Refuses To Provide An Effective Disability Accommodation?

If your employer refuses to provide an effective disability accommodation, denies your request without a meaningful evaluation, or simply decides no accommodation is available without engaging in the interactive process, you may have rights under the Americans with Disabilities Act (ADA).  Too often, employees assume their employer’s decision is final. It isn’t. If your employer rejected your requested disability accommodation, ignored reasonable alternatives, or provided an accommodation that never actually worked, you should speak with an experienced employment lawyer before giving up your rights. Many ADA disability discrimination claims are won or lost based on the employer’s accommodation process long before a jury ever hears the case.  At Spitz, The Employee’s Law Firm, we have spent decades fighting for employees facing disability discrimination, denied ADA accommodations, retaliation, and wrongful termination. As one of the nation’s largest employee-side employment law firms, we have the experience, resources, and trial record to stand up to employers of every size. We understand how employers evaluate disability accommodation requests, how they defend ADA claims, and how to prove when they failed to comply with the law.  If you believe your employer denied your request for a reasonable disability accommodation, retaliated against you for requesting an ADA accommodation, or wrongfully fired you because of your disability, contact Spitz, The Employee’s Law Firm for a free initial consultation with an experienced employment lawyer. We will listen to your story, evaluate your potential claims, explain your legal options, and answer your questions. Under our No Fee Guarantee, you pay no attorney fees unless we recover compensation for you. 

Frequently Asked Questions About ADA and Disability Accommodations 

[box] Can My Employer Deny My Disability Accommodation Request?  Yes, but only in certain circumstances. Before denying a disability accommodation request, an employer should conduct an individualized assessment of your disability, job duties, and requested accommodation. Rejecting a request without a meaningful evaluation may violate the Americans with Disabilities Act (ADA).  Does My Employer Have To Give Me The ADA Accommodation I Request?  No. The ADA does not require your employer to provide your preferred accommodation. Instead, your employer must provide a reasonable accommodation that is effective in allowing you to perform the essential functions of your job. If more than one effective accommodation exists, the employer may generally choose among them.  What If My Disability Accommodation Doesn’t Actually Work?  You can request a different disability accommodation. If your medical condition changes or the accommodation no longer addresses your disability-related limitations, notify your employer and explain why a different accommodation is needed. The goal is an accommodation that is effective.  Can My Employer Fire Me After I Request A Disability Accommodation?  An employer may terminate an employee for legitimate, lawful reasons, but the ADA prohibits retaliation for requesting a disability accommodation or exercising your rights under the law. If you are fired after requesting a disability accommodation, speak with an experienced disability discrimination lawyer to understand your legal rights.  What Is The ADA Interactive Process?  The ADA interactive process is a good-faith discussion between an employer and an employee to identify an effective reasonable accommodation. The employer should evaluate the disability accommodation request, consider reasonable alternatives, and work with the employee to determine whether a reasonable accommodation is available. [/box] Employment Lawyer Disclaimer  Legal Advertisement. This employee rights and disability discrimination blog is for general informational purposes only and should not be construed as legal advice. Reading this blog or contacting Spitz, The Employee’s Law Firm does not create an attorney-client relationship. Every employment law matter is unique, and no promises or guarantees are made regarding the outcome of any claim. If you believe your employer denied your ADA accommodation, failed to provide a reasonable disability accommodation, engaged in disability discrimination, retaliated against you, or wrongfully fired you, consult a qualified employment lawyer about your specific circumstances. ]]> by Spitz, The Employee's Law Firm <![CDATA[Denied Overtime Because Your Employer Calls You An Independent Contractor?]]> https://www.calltherightattorney.com/?p=263255 2026-07-23T19:32:48Z 2026-07-23T19:32:48Z

Why Signing A 1099 Independent Contractor Agreement May Not Eliminate Your Right To Overtime Pay

Getting a job is important. For every employee, getting paid fairly by an employer is essential. The paycheck pays the mortgage, keeps the lights on, puts food on the table, and provides security for your family. Overtime at time and a half, let’s you save a bit more.  Then, on your first day, your employer slides paperwork across the desk. One document says “Independent Contractor Agreement.” Instead of a W-2, you are told you'll receive a Form 1099. You assume that means you are not entitled to overtime pay—even though your employer tells you when to work, assigns your customers, sets your prices, provides your workplace, trains you, disciplines you, and can fire you whenever it wants.  Later, after working well over 40 hours each week without overtime pay, you ask about it. Your employer's response is simple:  “You signed the agreement. You're an independent contractor.”  That argument sounds convincing—until you read the Fair Labor Standards Act (“FLSA”).  In Sonderling v. Brown, the United States Court of Appeals for the Ninth Circuit considered whether nail technicians who signed independent contractor agreements and received Forms 1099 were actually independent contractors or employees entitled to the FLSA's protections. Looking beyond the labels, the court affirmed that the technicians were employees and further upheld significant sanctions against the employer for destroying evidence, failing to preserve records, and attempting to evade its obligations under the law.   The decision offers an important reminder for employees and employers alike: the law looks at reality—not labels. If your employer controls your work like an employee, calling you an independent contractor may not eliminate your right to overtime pay. 

Legal Takeaways

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  • Your employer cannot avoid paying overtime simply because it calls you an independent contractor or pays you on a Form 1099. Courts look beyond labels and contracts to determine whether you are actually an employee protected by the FLSA.  
  • Courts apply the “economic realities test” to determine whether a worker is truly an independent contractor or an employee. The actual working relationship—not the paperwork—controls the outcome.  
  • Destroying evidence after learning of an overtime dispute can significantly strengthen an employee's case. Employers who fail to preserve relevant evidence risk sanctions that may severely limit their ability to defend an overtime lawsuit. 
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Who Is Entitled To Overtime Pay? 

The FLSA generally requires employers to pay non-exempt employees one and one-half times their regular rate of pay for all hours worked over 40 in a workweek.  Most hourly employees are entitled to overtime. Many salaried employees are too. As a general rule, employees earning less than $1,128 per week ($58,656 annually) are entitled to overtime pay. Employees earning more than that amount may still qualify for overtime unless their employer proves they satisfy one of the FLSA's limited exemptions, such as the executive, administrative, or professional exemption.  Many employees mistakenly believe they cannot recover overtime because they receive a salary, have “manager” in their title, receive a Form 1099, or signed an independent contractor agreement. None of those facts, standing alone, automatically determine whether you are entitled to overtime. Every year, many employees are wrongfully classified because employers misunderstand—or ignore—the requirements of the FLSA.  Practical Tip: If your employer tells you that you are exempt from overtime, ask which specific FLSA exemption applies to your position and why. An employer's answer—or inability to provide one—often reveals whether it has correctly classified your job.  Best Overtime Pay Lawyer Blogs on Point: 

Can My Employer Avoid Paying Overtime By Calling Me An Independent Contractor?

No. Your employer cannot avoid paying overtime simply because it calls you an independent contractor or pays you on a Form 1099. Under the FLSA, courts look beyond labels and examine the actual working relationship to determine whether you are legally an employee.  One of the most common forms of wage theft occurs when an employer wrongfully classifies an employee as an independent contractor to avoid paying overtime wages, payroll taxes, unemployment compensation, workers' compensation premiums, and employee benefits. While some workers are legitimately independent contractors, many are misclassified employees who are entitled to the same protections as other employees, including overtime pay.  That is exactly what happened in Sonderling. The employer argued that the nail technicians were independent contractors because they had signed independent contractor agreements, received Forms 1099 instead of W-2s, and leased space inside the salon.   The Ninth Circuit Court of Appeals rejected that argument. Applying the FLSA's “economic realities” test, the court explained that the legal question is not what the paperwork says, but whether the workers are economically dependent on the employer or operating an independent business. Sonderling, 2026 U.S. App. LEXIS 21581, at *5–6.   Looking at the actual relationship, the court found that the employer exercised “near-complete control over the technicians' work.” Id. at *5. The technicians did not operate independent businesses. Instead, they worked at the employer's salon, used its facilities, followed its policies, and were central to its business operations. The court ultimately concluded that the evidence “overwhelmingly supports the conclusion that the NAB technicians are employees.” Id. at *6.   The court also relied on long-standing FLSA precedent recognizing that the economic realities test—not contractual labels—controls whether a worker is an employee. See Sureway Cleaners v. NLRB, 656 F.2d 1368, 1370 (9th Cir. 1981). Sonderling, 2026 U.S. App. LEXIS 21581, at *5.   The law looks at reality—not labels. If the facts show that you functioned as an employee, your employer cannot avoid paying overtime simply by calling you an independent contractor, issuing a Form 1099, or requiring you to sign paperwork saying otherwise.  Practical Tip: If your employer controls your schedule, assigns your work, supervises how you perform your job, restricts your ability to work elsewhere, or depends on your work as part of its regular business, you may be a misclassified employee entitled to recover unpaid overtime wages under the FLSA—even if every document you signed says “independent contractor.”  Best Wage Theft Attorney Blogs on Point: 

Can My Employer Defeat My Overtime Claim By Making Me Sign An Independent Contractor Agreement? 

No. Signing an independent contractor agreement does not automatically eliminate your right to overtime pay. A contract is one piece of evidence, but it does not determine whether you are legally an employee under the FLSA. Courts look beyond the agreement and examine how the parties actually worked together.  Employers often believe that having workers sign an independent contractor agreement protects them from overtime claims. Employees often believe the same thing. Both assumptions are wrong.  In Sonderling, the employer relied heavily on written independent contractor agreements to argue that the nail technicians were not employees covered by the FLSA. The Ninth Circuit Court of Appeals disagreed. Rather than treating the agreements as controlling, the court analyzed the actual relationship between the parties under the economic realities test and concluded that the technicians were employees entitled to the FLSA's protections. Sonderling, 2026 U.S. App. LEXIS 21581, at *5–6.   The employer's own conduct undermined its position. The evidence showed that after the Department of Labor began investigating the salon, the employer required the technicians to sign agreements containing restrictive provisions, including noncompetition and nonsolicitation clauses. Id. at *6–7. Those documents did not change the economic realities of the relationship or erase the employer's overtime obligations.  If signing a contract alone determined whether someone was an employee, every employer could avoid paying overtime simply by requiring workers to sign the same document. Congress did not write the FLSA that way. Instead, courts examine what actually happened in the workplace, not what an employer chose to call the relationship on paper.  The law looks at reality—not labels. An independent contractor agreement is evidence, but it does not determine whether you are legally entitled to overtime under the FLSA. When the facts demonstrate that you functioned as an employee, the protections of the FLSA generally follow.  Practical Tip: Do not assume you have lost your overtime claim because you signed an independent contractor agreement. An experienced employment attorney or wage and hour lawyer will look beyond the paperwork and evaluate how you actually performed your job. Many misclassified employees recover unpaid overtime wages despite signing agreements stating they were independent contractors.  Best Wage and Hour Law Firm Blogs on Point: 

What Happens If My Employer Tries To Beat My Overtime Case By Destroying Evidence?

Yes. Destroying evidence can seriously damage your employer's defense in an overtime lawsuit. Once an employer reasonably anticipates litigation or receives notice of a government investigation, it has a duty to preserve relevant evidence. Failing to do so can result in severe court-imposed sanctions.  Many overtime cases come down to one simple question: How many hours did the employee actually work? Time records, payroll records, schedules, emails, text messages, surveillance footage, and electronic data often provide the answer. When an employer destroys or fails to preserve that evidence, it becomes much harder to dispute an employee's version of events.  That issue played a significant role in Sonderling. After the Department of Labor began investigating the salon's pay practices, the employer failed to preserve surveillance footage showing when technicians arrived and left work. The district court found that the footage constituted “the only reliable evidence establishing employees' hours” and sanctioned the employer for failing to preserve it. Sonderling, 2026 U.S. App. LEXIS 21581, at *2–3.   The employer also failed to preserve electronic evidence in its original form. Rather than producing electronically stored information (“ESI”) with its native metadata intact, relevant information was altered or lost during production. The district court imposed additional sanctions, and the Ninth Circuit Court of Appeals affirmed those rulings. Id. at *3–4.   Importantly, the appellate court emphasized that discovery sanctions must be “no greater than necessary to cure the prejudice” caused by the loss of evidence. Id. at *3. In other words, courts are not looking to punish employers simply for making mistakes. Instead, they seek to restore fairness when one side's destruction or loss of evidence places the other side at a disadvantage.   For employees, this can dramatically affect an overtime lawsuit. If an employer destroys the very records that would have shown when employees worked, a court may limit the employer's defenses, permit additional adverse inferences, or otherwise fashion remedies that prevent the employer from benefiting from its own failure to preserve evidence.  The law looks at reality—not labels—and it also expects honesty during litigation. Employers cannot erase their overtime obligations by destroying the records needed to prove them.  Practical Tip: If you believe your employer may be deleting schedules, text messages, surveillance video, payroll records, or other evidence relating to your hours worked, tell your employment lawyer immediately. Early action can help preserve critical evidence and strengthen your claim before important records disappear. 

Frequently Asked Questions About Overtime, Independent Contractors, And The FLSA 

[box] Can My Employer Avoid Paying Overtime By Giving Me A Form 1099?  No. Receiving a Form 1099 instead of a W-2 does not determine whether you are entitled to overtime pay. Courts look beyond tax forms and examine the actual working relationship. If you function as an employee under the FLSA's economic realities test, you may be entitled to recover unpaid overtime wages even if your employer treated you as an independent contractor. The law looks at reality—not labels.   Can My Employer Require Me To Sign An Independent Contractor Agreement?  Yes. An employer can ask you to sign an independent contractor agreement. However, signing the agreement does not automatically determine your legal status under the FLSA. Courts examine how the parties actually worked together—not simply what the paperwork says. A signed agreement cannot eliminate overtime rights that federal law provides.   How Do Courts Decide Whether Someone Is An Employee Or An Independent Contractor?  Courts generally apply the economic realities test, which examines the actual relationship between the worker and the employer. Factors commonly include the employer's control over the work, whether the worker operates an independent business, the worker's opportunity for profit or loss, the permanence of the relationship, the worker's investment in the business, and whether the work performed is an integral part of the employer's business. No single factor controls the analysis. Instead, courts consider the totality of the circumstances.  Can My Employer Retaliate Against Me For Asking About Overtime Pay?  Generally, no. The FLSA prohibits employers from retaliating against employees who complain about unpaid overtime, ask about their overtime rights, or otherwise exercise rights protected by the Act. Depending on the circumstances, an employee who suffers retaliation may have a separate claim in addition to the claim for unpaid overtime wages.  What If My Employer Destroyed Time Records Or Other Evidence?  Destroying relevant evidence can seriously hurt an employer's defense. Employers have a duty to preserve evidence once they reasonably anticipate litigation or become aware of a government investigation. In Sonderling, the Ninth Circuit affirmed sanctions after the employer failed to preserve surveillance footage and electronically stored information that was relevant to employees' overtime claims.   How Far Back Can I Recover Unpaid Overtime Wages?  Under the FLSA, employees generally may recover unpaid overtime wages going back two years before filing suit. If the employer's violation is found to be willful, the recovery period may extend to three years. Because these deadlines can significantly affect the amount you recover, it is important to speak with an experienced employment lawyer, overtime lawyer, or wage and hour attorney as soon as possible. [/box]

Talk To An Experienced Overtime Lawyer If You Believe You Were Misclassified 

Don't assume your employer is right simply because it called you an independent contractor, paid you with a Form 1099, or required you to sign an independent contractor agreement. The law looks at reality—not labels. As Sonderling demonstrates, if you were really functioning as an employee, you may be entitled to recover unpaid overtime wages, liquidated damages, attorney fees, and other relief available under the FLSA.  Too many employers believe they can avoid paying overtime by changing a worker's title or requiring paperwork that labels employees as independent contractors. The FLSA does not permit that. Courts examine the economic realities of the relationship, not simply the documents an employer drafted or the tax form it issued. Likewise, employers that destroy evidence or fail to preserve records after learning of an overtime dispute risk making an already difficult defense much harder.  If you believe your employer wrongfully classified you as an independent contractor, denied you overtime pay, or failed to pay the wages you earned, you should speak with an experienced employment attorney as soon as possible. Time limits apply to FLSA claims, and waiting too long may reduce the amount of unpaid overtime wages you can recover.  At Spitz, The Employee's Law Firm, we have spent decades fighting for employees whose employers violated federal and state employment laws. We have recovered millions of dollars for employees in wage and hour cases, discrimination claims, retaliation lawsuits, and wrongful termination matters. Our experienced employment lawyers, wage and hour attorneys, and overtime lawyers understand how to identify employee misclassification and hold employers accountable when they violate the FLSA.  If you believe your employer improperly denied you overtime pay or wrongfully classified you as an independent contractor, contact Spitz, The Employee's Law Firm today for a free initial consultation. We will evaluate your case, explain your rights, and help you determine the best course of action. Under our No Fee Guarantee, you pay no attorney fees unless we recover money for you.  Legal Advertisement. This blog is for general informational purposes only and is not legal advice. Reading this blog or contacting Spitz, The Employee's Law Firm does not create an attorney-client relationship. If you believe you were wrongfully classified as an independent contractor, denied overtime wages, or are owed unpaid wages under the Fair Labor Standards Act (FLSA), consult an experienced employment lawyer, wage and hour lawyer, or overtime attorney about your specific circumstances. Every case is different, and past results do not guarantee future outcomes. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Boss Be A Complete Jerk Without Breaking Employment Law?]]> https://www.calltherightattorney.com/?p=263253 2026-07-21T22:27:02Z 2026-07-21T22:27:02Z Employee sitting silently while an angry supervisor publicly criticizes the employee during a workplace meeting, illustrating the difference between workplace bullying and unlawful discrimination.

Why Employment Law Doesn’t Protect You From A Jerk Boss—But Title VII Protects You From Discrimination

We’ve all known that boss or manager.  The one who walks into the office and everyone’s mood instantly changes. The one who criticizes your work in front of coworkers but never tells you what you did wrong. The one who slams doors, raises a voice during meetings, sends late-night emails picking apart your work, and leaves you dreading Monday morning before the weekend is even over. The one who makes you rehearse every conversation in your head because you never know what mood they’re going to be in or whether today will be the day you become the target.  Some bosses are simply jerks.  You may be surprised, employment laws do not prohibit employers from being jerks.  That may sound unfair, but it is one of the most misunderstood principles in employment law. Federal law does not require supervisors to be polite, respectful, emotionally intelligent, or even pleasant to work for. Title VII protects employees from discrimination because of race/color, gender, gender identity, sexual orientation, national origin, and religion. The Americans with Disabilities Act (“ADA”) protects workers with disabilities from disability discrimination on the job while the Age Discrimination in Employment Act of 1967 (“ADEA”) outlaws age discrimination against older employees. These laws do not protect employees from generally horrible managers or rude bosses with terrible personality who treat everyone poorly.  That distinction is where many employment cases are won or lost. Workplace bullying, public criticism, micromanagement, favoritism, intimidation, and abusive management may create a miserable place to work. But Title VII, the ADA and the ADEA ask a different question: Why? Was the employee treated that way because of race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic? Or was the supervisor simply difficult with everyone?  That question was at the center of Thurman v. Kansas, 2026 U.S. App. LEXIS 20044 (10th Cir. July 9, 2026). The State of Kansas did not spend much time arguing that Judge Fred Johnson was pleasant to work with. Quite the opposite. The defense essentially accepted that many people viewed him as a bully. Instead, it focused on a different point: even if Judge Johnson was rude, abrasive, intimidating, and a bully, Title VII does not prohibit bullying. It prohibits discrimination because of a protected characteristic. No race discrimination. No color discrimination. No religion discrimination. No sex discrimination. No pregnancy discrimination. No sexual orientation discrimination. No transgender discrimination. No national origin discrimination. Without discrimination based on a protected class, there simply is no Title VII violation. Even more remarkably, this was not the first time the Tenth Circuit had addressed similar allegations involving the same judge. In an earlier lawsuit brought by another female employee, the court likewise concluded that the evidence failed to show his conduct was motivated by sex discrimination. Overfield v. Kansas, No. 23-3057, 2024 WL 1611473 (10th Cir. Apr. 15, 2024).  The evidence showed that Terri Thurman believed Judge Johnson bullied her after she angered him during a budget meeting by saying she did not know when she would retire. She also claimed that court administrator Mac Young stood by without helping and later questioned her own job performance instead of addressing the judge’s conduct. Thurman complained to state agencies, later alleged a hostile work environment, retaliation, and constructive discharge under Title VII, and ultimately retired rather than continue working under those conditions. The Tenth Circuit nevertheless affirmed summary judgment because it concluded Thurman failed to present sufficient evidence that the alleged bullying occurred because of her sex or that the later actions were taken in retaliation for protected activity. Id.  This decision answers three important questions every employee should understand. Can your boss bully you without violating Title VII? How do you prove your employer crossed the line from being a jerk to engaging in unlawful discrimination? And when does complaining about workplace bullying become protected activity under federal employment law? Let’s tackle those employment discrimination law questions. 

Legal Takeaways 

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  • Title VII and other federal laws do not prohibit supervisors from being rude, unfair, abrasive, or difficult. It prohibits discrimination because of a protected characteristic. 
  • Workplace bullying, micromanagement, favoritism, and abusive supervision do not violate Title VII unless they are motivated by race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic. 
  • Employees may prove discrimination through circumstantial evidence, but they must present evidence connecting the employer’s conduct to a protected class or protected activity. [/box]

Can My Boss Be Mean, Bully Me, Or Create A Toxic Workplace Without Violating Title VII? 

Yes. Title VII does not require employers to be fair, kind, respectful, or pleasant. It prohibits discrimination because of a protected characteristic. A rude boss, an abusive supervisor, or a toxic workplace may make your life miserable, but those facts alone do not establish a violation of federal employment law.  The Tenth Circuit summarized the issue in one sentence: “The overarching issue is whether a reasonable fact-finder could attribute the bullying and acquiescence to Ms. Thurman’s gender. We answer no.” Thurman at *1.  That was the entire case. The court was not deciding whether Judge Fred Johnson was a good supervisor. It was not deciding whether he bullied Terri Thurman. It was deciding whether the evidence permitted a reasonable jury to conclude the alleged bullying occurred because of her sex. The court concluded it did not.  The opinion explained that “the underlying incidents are gender neutral.” Id. at *3. Thurman argued that Judge Johnson mistreated women while treating men better. But the court found the evidence did not support that conclusion. In fact, Thurman herself testified that she believed Judge Johnson “had lashed out at any statement that he didn’t like—even if it had come from another male judge.” Id. at *4. The State also presented evidence that Judge Johnson had acted hostilely toward a male colleague. The court therefore concluded Thurman “lacks any evidence of a discriminatory motive.” Id.  That distinction is one of the most misunderstood principles in employment law. Employees frequently contact employment lawyers after enduring yelling, public criticism, bullying, micromanagement, favoritism, humiliation, or constant hostility. Those experiences are real. They can make employees anxious, miserable, and desperate to leave their jobs. But Title VII is not a workplace civility code. It prohibits discrimination because of race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic. It does not prohibit managers from simply being jerks.  That does not mean employees need direct evidence of discrimination. Employers almost never admit they acted because of race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic. Instead, discrimination is usually proven through circumstantial evidence. Discriminatory comments, better treatment of similarly situated employees outside the protected class, inconsistent discipline, shifting explanations, suspicious timing, statistical evidence, or other surrounding facts may all permit a jury to infer discriminatory intent. The question is not whether your boss was unfair. The question is why.  Practical Tip: If you believe your employer is targeting you, don’t just document what happened. Document facts that help explain why it happened. Save emails, text messages, performance reviews, disciplinary records, and identify coworkers who were treated differently under similar circumstances. Those facts often become the evidence that separates a bad boss from unlawful discrimination.  Best Race Discrimination Lawyer Blogs on Point: 

How Do I Prove My Boss Is Discriminating Instead Of Just Being A Jerk? 

The difference usually comes down to one word: motive.  Title VII does not ask whether your boss was rude. It asks why your boss treated you that way. If your employer singled you out because of your race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic, the conduct may violate federal employment law. If your boss acted the same way toward nearly everyone, the conduct may be unfair without being unlawful.  That distinction ultimately decided Thurman. Although Thurman argued Judge Johnson treated women worse than men, the Tenth Circuit concluded the evidence did not support a reasonable inference that his conduct was motivated by sex. Instead, the evidence showed Judge Johnson reacted negatively to people who challenged him—not just women. Thurman herself testified that she believed Judge Johnson “had lashed out at any statement that he didn’t like—even if it had come from another male judge.” Id. at *4. The court also noted evidence that Judge Johnson had acted hostilely toward a male colleague. Without evidence that the alleged bullying occurred because of Thurman’s sex, the discrimination claim could not survive. Id. at 3–5.  This is how most discrimination cases are decided. Employers almost never admit they acted because of race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic. Instead, employees usually prove discriminatory motive through circumstantial evidence.  That evidence may include: 
  • Discriminatory comments or slurs. 
  • Better treatment of similarly situated employees outside the protected class. 
  • Different discipline for the same conduct. 
  • Shifting or false explanations for an employment decision. 
  • Suspicious timing. 
  • Statistical evidence or patterns of discrimination. 
  • Emails, text messages, or other documents revealing discriminatory intent. 
No single fact usually wins a discrimination case. Instead, employment lawyers piece together dozens of facts until the reason for the employer’s conduct becomes clear. A jury is then asked to decide whether the employer acted because of a protected characteristic—or simply because the supervisor had a difficult personality.  Practical Tip: If you believe your employer is discriminating against you, don’t just document what happened. Document facts showing why you believe it happened. Keep emails, text messages, performance evaluations, disciplinary records, and identify coworkers outside your protected class who were treated differently under similar circumstances. Those facts often become the evidence that transforms a bad boss into an unlawful discriminator.  Best Gender Discrimination Attorney Blogs on Point: 

Can I Be Fired in Retaliation For Complaining About A Bully At Work?

Maybe—but it depends on what you complained about. Title VII protects employees who oppose discrimination or wrongful termination because of race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic. It does not protect every complaint about an unpleasant supervisor or toxic workplace.  That distinction proved fatal to Thurman’s retaliation claim. She argued that she suffered retaliation after complaining about Judge Johnson’s bullying and Administrator Mac Young’s response. The Tenth Circuit disagreed, holding that the evidence did not permit a reasonable jury to conclude retaliation was the but-for cause of the alleged adverse actions. Id. at 5–7.  The court identified several problems with Thurman’s evidence. She claimed Judge Johnson announced to staff that she had filed a complaint against him but admitted she had no evidence showing Judge Johnson actually made the announcement. Other incidents occurred more than a year after her complaints—far too long, standing alone, to support an inference of retaliation. Still other actions, including delays in filling a vacant position and providing weekly court calendars, lacked any evidence connecting them to her protected activity. Id. The Tenth Circuit therefore concluded that no reasonable jury could find the required causal connection between Thurman’s complaints and the alleged retaliation.  This section illustrates another common misunderstanding about Title VII. Complaining that your boss is rude, unfair, disrespectful, or a bully is not necessarily protected activity. Complaining that your employer is engaging in race discrimination, color discrimination, religion discrimination, sex discrimination, pregnancy discrimination, sexual orientation discrimination, transgender discrimination, national origin discrimination, or another form of unlawful discrimination generally is.  That is why what you say when you complain matters. If you believe your employer is discriminating against you, say so. Explain that you believe you are being treated differently because of your race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic. A vague complaint that your supervisor is “unfair” or “creating a toxic workplace” may not place your employer on notice that you are opposing conduct prohibited by Title VII.  Practical Tip: Whenever possible, make discrimination complaints in writing. An email or text message identifying the discrimination and the protected characteristic involved creates a contemporaneous record of your protected activity. That documentation often becomes critical evidence if your employer later disciplines, demotes, or terminates your employment.  Best Workplace Retaliation Law Firm Blogs on Point: 

How Can The Best Employment Lawyer Tell The Difference Between A Jerk Boss And Illegal Discrimination?

Many employees assume they have a lawsuit because their boss treated them terribly. Others assume they do not have a lawsuit because no one ever admitted to discriminating against them. Both assumptions can be wrong.  The best employment lawyers understand that discrimination cases are rarely won with a single “smoking gun.” Instead, they are built through careful investigation and strategic discovery. An experienced employment attorney knows how to obtain Human Resources files, internal emails, text messages, personnel records, disciplinary histories, performance evaluations, and other evidence employees cannot access on their own. Depositions often reveal inconsistent explanations, better treatment of similarly situated employees, shifting stories, or discriminatory motives that were never apparent when the employee was still working.  At Spitz, The Employee’s Law Firm, representing employees is all we do. As one of the largest law firms in the United States dedicated exclusively to employees’ rights, we have the experience, resources, and trial skills to uncover the evidence that often determines whether a case is won or lost. We offer a free initial consultation, and our No Fee Guarantee means you pay no attorney fees unless we recover for you. Whether your case involves race discrimination, color discrimination, religion discrimination, sex discrimination, pregnancy discrimination, sexual orientation discrimination, transgender discrimination, national origin discrimination, retaliation, wrongful termination, or another violation of employment law, our attorneys are ready to evaluate your rights and fight for the justice you deserve. 

Frequently Asked Questions

[box] Can my boss yell at me without breaking employment law?  Yes. Employment law does not prohibit supervisors from yelling, criticizing employees, or having a difficult personality. However, if your boss treats you differently because of your race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic, the conduct may violate Title VII.  Can my employer bully me if everyone is treated the same way?  Generally, yes. Title VII does not prohibit workplace bullying by itself. If your employer treats employees equally poorly, the conduct may reflect bad management rather than unlawful discrimination. Other federal or state laws may apply depending on the circumstances.  How do I prove my boss is discriminating against me instead of just being a jerk?  Discrimination is often proven through circumstantial evidence. Examples include discriminatory comments, more favorable treatment of similarly situated employees outside your protected class, inconsistent discipline, shifting explanations, suspicious timing, or other evidence showing your employer acted because of a protected characteristic.  Can I be fired for complaining about race discrimination, sex discrimination, or another form of discrimination?  Title VII prohibits employers from retaliating against employees who oppose discrimination based on race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, or another protected characteristic. Complaints that your supervisor is merely rude, unfair, or unpleasant, however, are not necessarily protected. [/box] Employment Lawyer Disclaimer  This blog about Title VII, race discrimination, color discrimination, religion discrimination, sex discrimination, pregnancy discrimination, sexual orientation discrimination, transgender discrimination, national origin discrimination, retaliation, wrongful termination, hostile work environment, and employment law is provided for general informational purposes only and should not be construed as legal advice. Every employment situation is unique, and whether an employee has a legal claim depends on the specific facts, available evidence, and applicable law. Reading this blog does not create an attorney-client relationship with Spitz, The Employee’s Law Firm or any of its attorneys. No promises, guarantees, or predictions are being made regarding the outcome of any legal matter. This blog is a legal advertisement. If you believe your employer discriminated against you because of a protected characteristic or retaliated against you for opposing unlawful discrimination, promptly consult with a qualified employment lawyer to protect your rights and comply with applicable legal deadlines. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Blame Me For My Emotional Distress After Sexual Harassment?]]> https://www.calltherightattorney.com/?p=263208 2026-07-13T12:49:20Z 2026-07-16T16:00:20Z Employee sitting alone after repeated workplace sexual harassment while coworkers laugh in the background, illustrating a hostile work environment and emotional distress under Title VII. Why Title VII Does Not Require Employees To Get Therapy Or “Get Over It” We’ve all been told to “get over it.” Not getting invited to lunch. Being left off an email. Losing out on a promotion. Having a coworker make an insensitive comment. Life is full of disappointments, and sometimes moving forward really is the healthiest response.  But “get over it” should never be an employer’s response to ongoing, pervasive sexual harassment.  People respond to trauma differently. Some employees immediately seek counseling. Others lean on family and friends. Some text a spouse, parent, sibling, or close friend because they simply need someone to understand what happened. Some continue working because they cannot afford to stop. Some stop eating or can’t sleep. Others do everything they can to make it through another workday. None of those responses makes the trauma less real. None excuses what an employer allowed to happen. In fact, those conversations and text messages often become some of the strongest evidence of an employee’s emotional distress because they capture the employee’s thoughts and emotions while the trauma is unfolding—not years later in a courtroom.  This brings us to today’s blog topic—EEOC v. SkyWest Airlines, Inc., ___ F.4th ___, 2026 U.S. App. LEXIS 20130 (5th Cir. 2026). In this case, SkyWest argued it should not be held liable because it maintained a sexual harassment policy, investigated employee Sarah Budd’s complaints, and disciplined a few employees. Even if the company was liable, it argued Budd should recover less for her emotional distress because she allegedly failed to mitigate those damages by obtaining additional therapy or other treatment and should have been able to just get over it.  The evidence presented to the jury painted a far different picture. Budd testified that a supervisor asked whether she liked “whips and chains and leathers,” repeatedly made sexual jokes, called her into his office to ask personal questions, and suggested she be sold as a prostitute in Amsterdam’s red-light district. Coworkers openly discussed sex acts, joked about lubricant, viewed pornography at work, debated which women they wanted to have sex with during company trips, repeatedly used the word “rape,” and turned a doll attached to a candy jar into the subject of recurring rape jokes, even creating a mock Human Resources complaint accusing another employee of raping the doll. One coworker gestured toward his crotch and offered Budd “good face cream.” Another declared that women who report rape “just fucking want attention.” Budd estimated she heard the word “rape” approximately forty times in a single day. She repeatedly reported the sexual harassment, but it continued. According to the evidence, the abuse caused nightmares, headaches, vomiting, diarrhea, self-harm, suicidal thoughts, and eventually medical leave. She leaned on family and friends, sent contemporaneous text messages describing what was happening, and struggled with the emotional impact long after the harassment occurred. Despite that evidence, SkyWest argued Budd should recover less because she did not do enough to overcome the emotional harm the jury found SkyWest had caused.   The jury agreed. It found SkyWest liable under Title VII of the Civil Rights Act of 1964, awarding compensatory damages for Budd’s emotional distress and punitive damages. On appeal, SkyWest argued that its sexual harassment policy and investigation shielded it from liability, that Budd’s emotional distress damages should be reduced because she did not obtain enough therapy or other treatment, and that the evidence did not support punitive damages. The United States Court of Appeals for the Fifth Circuit largely rejected those arguments and affirmed the judgment.   This decision answers three important questions every employee should understand. Can an employer escape liability simply because it has a sexual harassment policy and conducts an investigation? Must an employee obtain therapy before recovering emotional distress damages under Title VII? And when may a jury award punitive damages against an employer that fails to stop sexual harassment? 

Legal Takeaways

[box] An employer does not avoid Title VII liability simply because it has a sexual harassment policy or conducts an investigation. The employer’s response must be reasonably calculated to stop the harassment.  Title VII does not require an employee to mitigate emotional distress damages by obtaining therapy, taking medication, or otherwise proving the employee tried to “get over” workplace trauma.  A jury may award punitive damages when an employer acts with malice or reckless indifference to an employee’s federally protected rights, even if the employer has written anti-harassment policies. [/box]  

Can An Employer Escape Liability Just Because It Has A Sexual Harassment Policy, Conducts An Investigation, But Fails To Stop The Sex Harassment? 

No. A written sexual harassment policy and an investigation can be evidence that my help an employer but are not enough in isolation. Under Title VII, an employer’s response must be reasonably calculated to end the harassment. If sexual harassment continues because the employer’s response was ineffective, the employer may still be liable.  SkyWest argued it had written anti-harassment policies, required sexual harassment training, investigated Budd’s complaints, and disciplined employees. According to SkyWest, those actions demonstrated a good-faith effort to comply with Title VII and therefore shielded the company from liability.  The jury disagreed because the evidence showed the harassment did not stop. Budd repeatedly complained about sexually explicit comments, rape jokes, pornography in the workplace, and other offensive conduct. Human Resources investigated, but the jury heard evidence that investigators failed to interview key witnesses, asked limited follow-up questions, and failed to uncover the full extent of the harassment. Some employees received written warnings, but the misconduct continued. A jury could reasonably conclude the investigation looked complete on paper but failed where it mattered most—it did not stop the sexual harassment.  The United States Court of Appeals for the Fifth Circuit agreed there was sufficient evidence to support the jury’s verdict. Having a policy, conducting training, and opening an investigation do not automatically shield an employer from liability. The real question is whether the employer’s response was reasonably calculated to end the harassment. Under these facts, the Fifth Circuit held the jury was entitled to conclude it was not.  Too many employers believe checking the Human Resources box is enough. It is not. A sexual harassment policy is a starting point, not a defense. If an employer allows a hostile work environment to continue after learning about it, the policy may become evidence that the employer knew what Title VII required but failed to follow through.  The reality is that an employer’s good-faith compliance is measured by results, not paperwork.  Practical Tip: Report sexual harassment as soon as possible and keep copies of every complaint, email, text message, and Human Resources response. If the harassment continues after your initial report, continue documenting each new incident. Evidence showing that an employer knew about the misconduct but failed to stop it often becomes some of the strongest proof in a hostile work environment case.  Best Sexual Harassment Lawyer Blogs on Point: 

Do Employees Have To Get Therapy To Recover Emotional Distress Damages Under Title VII?

No. Title VII does not require an employee to obtain therapy, take medication, or otherwise “get over” workplace trauma before recovering emotional distress damages. Congress expressly imposed a duty to mitigate lost wages, but it did not impose a similar duty for emotional distress damages. The United States Court of Appeals for the Fifth Circuit refused to add a requirement that Congress chose not to include.  That issue became one of SkyWest’s primary arguments on appeal. The airline contended Budd’s emotional distress award should be reduced because she failed to sufficiently mitigate her injuries through therapy or other treatment. The Fifth Circuit rejected that argument, holding that Title VII imposes no duty to mitigate emotional distress damages.  The Court reached that conclusion by starting with the statute itself. Title VII expressly requires employees seeking back pay to mitigate their lost wages. When Congress later authorized compensatory damages for emotional distress through 42 U.S.C. § 1981a, however, it said nothing about requiring employees to mitigate those damages. The Fifth Circuit held that omission mattered. When Congress includes a requirement in one part of a statute but omits it from another, courts generally presume the difference was intentional.  The Court also looked to the common law and found no established rule requiring victims to mitigate emotional distress damages when Congress enacted § 1981a. Without support in either the statutory text or the common law, the Fifth Circuit declined to create a new legal defense for employers.  That does not mean therapy is unimportant. For many employees, counseling, medication, or other treatment is an important part of healing after workplace sexual harassment or other traumatic events. It also can be powerful evidence. Therapy records, diagnoses, treatment notes, and testimony from treating providers often provide compelling proof of the nature, severity, and duration of an employee’s emotional distress. That evidence may significantly strengthen a damages claim.  The Fifth Circuit’s holding was simply that Title VII does not require an employee to obtain therapy before recovering emotional distress damages. Employees heal differently. Some seek professional treatment immediately. Others rely on family, friends, faith, or other support systems. Some cannot obtain treatment because of cost, availability, or the trauma itself. The absence of therapy may affect the amount and quality of evidence available in a particular case, but it does not create a legal defense for the employer. Employers often argue an employee’s emotional distress was not as severe because the employee never sought treatment. The Fifth Circuit rejected turning that argument into a legal requirement under Title VII.   Practical Tip: If workplace sexual harassment or other unlawful conduct affects your emotional well-being, preserve evidence of that impact. Text messages to family or friends, journal entries, emails, photographs, and medical records can all help demonstrate how the misconduct affected you. In SkyWest, Budd’s contemporaneous text messages became important evidence because they reflected her emotional condition while the harassment was occurring, not years later during litigation.   Best Sex Harassment Attorney Blogs on Point: 

When Can A Jury Award Punitive Damages In A Sexual Harassment Case?

Punitive damages punish particularly blameworthy conduct. Unlike compensatory damages, which compensate an employee for losses such as emotional distress, punitive damages are designed to punish an employer and deter similar misconduct. They are reserved for the most serious Title VII violations.  Under Title VII, punitive damages generally require proof that an employer acted with malice or reckless indifference to an employee’s federally protected rights. An employer that makes a genuine good-faith effort to comply with the law ordinarily cannot be held liable for punitive damages.  SkyWest argued that standard protected it. The airline pointed to its written sexual harassment policy, employee training, investigation, and disciplinary actions as evidence of its good-faith efforts to comply with Title VII.  The jury—and ultimately the Fifth Circuit—disagreed. The evidence showed that SkyWest knew about repeated sexual harassment, investigated Budd’s complaints, yet failed to stop the misconduct. The jury also heard evidence that the investigation failed to uncover the full extent of the harassment and that the employer’s response allowed the hostile work environment to continue. Under those facts, the Fifth Circuit held the jury could reasonably conclude SkyWest had not made a genuine good-faith effort to comply with Title VII.  This distinction matters. A handbook, annual training, or Human Resources investigation does not automatically shield an employer from punitive damages. Those measures matter only if they are used effectively. An employer cannot claim good faith by checking boxes while allowing unlawful harassment to continue. When an employer knows about sexual harassment but fails to take action reasonably calculated to stop it, a jury may conclude the employer acted with reckless indifference to federal law.  The reality is that an employer’s good-faith compliance is measured by results, not paperwork.  Practical Tip: If your employer investigates your complaint but the sexual harassment continues, continue reporting each new incident and preserve every response from Human Resources or management. Evidence showing that your employer knew its initial efforts failed, yet allowed the harassment to continue, may support not only liability but also punitive damages.  Best Employee’s Rights Law Firm Blogs on Point: 

What Should I Look For In The Best Employment Lawyer For A Sexual Harassment Case?

Sexual harassment cases are rarely won because an employee simply tells a compelling story. They are won because an experienced employment lawyer knows how to prove that story. The most important evidence is often hidden inside the employer’s Human Resources files, internal emails, text messages, witness statements, investigation notes, disciplinary records, training materials, and other documents that employees cannot obtain on their own. An experienced employment attorney knows how to uncover that evidence through written discovery, depositions, and other litigation tools. Just as importantly, an experienced trial lawyer knows how to present that evidence in a way that juries understand and trust.  At Spitz, The Employee’s Law Firm, representing employees is all we do. As one of the largest law firms in the United States dedicated exclusively to employees’ rights, we have the resources, experience, and courtroom success to stand up to employers of every size. We offer a free initial consultation, and our No Fee Guarantee means you pay no attorney fees unless we recover for you. Whether your case involves sexual harassment, retaliation, discrimination, wrongful termination, emotional distress, or another violation of employment law, our attorneys understand both the legal issues and the personal impact these cases have on employees and their families. If you believe your employer violated your rights, contact Spitz, The Employee’s Law Firm today. The sooner an experienced employment lawyer becomes involved, the sooner critical evidence can be preserved and your legal rights protected. 

Frequently Asked Questions

[box] Can my employer avoid liability just because it has a sexual harassment policy?  No. A written sexual harassment policy alone does not shield your employer from liability. Under Title VII, your employer’s response must be reasonably calculated to stop the harassment after learning about it.  Can I recover emotional distress damages if I never saw a therapist after sexual harassment at work?  Yes. Title VII does not require you to obtain therapy before recovering emotional distress damages. Although therapy can provide powerful evidence supporting your claim, the absence of therapy does not automatically prevent recovery.  Can repeated sexual jokes, pornography, or rape jokes create a hostile work environment?  Yes. Depending on the frequency, severity, and surrounding circumstances, repeated sexual jokes, pornography in the workplace, rape jokes, and other sexually offensive conduct may create an unlawful hostile work environment under Title VII.  Can my employer wrongfully fire me for reporting sexual harassment?  No. Title VII prohibits employers from retaliating against employees who report sexual harassment or participate in a workplace investigation. A wrongful termination after making a good-faith complaint may support a retaliation claim.  Should I text my spouse, family, or friends about workplace sexual harassment?  Yes. Contemporaneous text messages, emails, and other communications with people you trust can become powerful evidence because they document your emotional condition while the harassment is occurring rather than years later during litigation. [/box] Employment Lawyer Disclaimer  This workplace sexual harassment, hostile work environment, retaliation, emotional distress, wrongful termination, and employment law blog provides general information only and should not be construed as legal advice. Every employment situation is different, and the outcome of any claim depends on its specific facts and the applicable law. You should consult with a qualified employment lawyer regarding your individual circumstances and any applicable legal deadlines. No promises, guarantees, or predictions are being made regarding the outcome of any legal matter. This blog is a legal advertisement. Reading this blog does not create an attorney-client relationship with Spitz, The Employee’s Law Firm or any of its attorneys. ]]>