Benefits

A Lesson on the Importance of Uniformity in Performance Standards

By Jon Hyman

May. 28, 2015

Under the ADA, an employer can require all employees, including disabled employees, to meet minimum qualification standards. According to the EEOC’s Q&A on Applying Performance And Conduct Standards To Employees With Disabilities, “an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job,” and “lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

 
What happens, however, when an employer holds a disabled employee to a higher performance standard than non-disabled counterparts? Consider Wolffram v. Sysco Cincinnati (S.D. Ohio 5/19/15).
 
The plaintiff in Wolffram was a diabetic, and, as a result, needed extra time for bathroom breaks during the work day. Those bathroom breaks caused Wolffram’s performance to suffer on Sysco’s electronic performance monitoring system. Because Wolffram consistently fell below the minimum performance requirements, Sysco ultimately terminated him. Nevertheless, he defeated Sysco’s summary judgment motion on his disability discrimination claim. How? Because he claimed that other non-disabled employees were given more slack on the performance standards, that other employees “cheated” the system but were not disciplined or terminated.
 
Employers, it’s OK to have performance standards. It’s even OK to require that each of your employees, disabled and non-disabled, meet those standards. When you start letting those standards slip, however, you become exposed to claims from disabled employees who cannot otherwise meet the requirements because of their disability. Yet another example of how the EEO laws require uniformity of application in your workplace.
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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