I Fired Her Because She’s Slow, But Now She’s Sued. Can She Win?

Question:

I’m a small-business owner. I serve customers and rely on a full-time administrative employee to handle billing, filing, word processing and customer calls. When my long-term employee moved out of state last year, I placed an ad on Craigslist.

A stream of unqualified applicants and spam overwhelmed me. I hired “Debi” because she had eight years of office experience, even though she seemed an unhappy person.

I soon regretted choosing Debi but thought things would get better. Also, when I called my No. 2 candidate two weeks after hiring Debi, she’d already taken another job.

Long story short, things never got better. Debi was slow. She’s smokes and eats constantly. She weighs at least 300 pounds. I told her she couldn’t smoke in the office, so she takes breaks outside. Debi says she only smokes twice a day for a “minute or two” but I kept a record showing it was seven to eight minutes eight to ten times a day. I docked Debi’s pay, only to learn I couldn’t because none of her smoke breaks were over 20 minutes.

When I told Debi she couldn’t leave her desk except to use the restroom, she started smoking in there and the building’s other tenants got angry. Three weeks ago, I fired Debi for low productivity.

Debi cried when I fired her and told me I was the reason she ate, that I never gave her a chance. She said I only fired her because she was fat.

Now I’m staring at a letter from her attorney, alleging I fired Debi for appearance reasons and that the Americans with Disabilities Act as Amended (ADAAA) protected obesity. I called him and said the problem was Debi worked too slowly. He asked me if I could quantify that.

I didn’t answer, but I can’t; I just know Debi’s replacement works hard and fast. Does Debi have a case?

Answer:

Although Debi and her attorney have made this an obesity issue, Debi has habits and problems that run deep and wide. Like many who don’t want to take responsibility for problems of their own making, she looks for others to blame. You’ve fallen into her spiderweb.

You need an attorney because Debi and her attorney have identified a gray area on which to sue.

The Equal Employment Opportunity Commission has taken the position that weight is a physical characteristic and not a disabling physical impairment, unless it is both outside the normal range and the result of an underlying physiological disorder. However, the EEOC Compliance Manual also states that “severe obesity,” defined as body weight of more than 100 percent above the norm, is impairment.

Meanwhile, federal courts have ruled that severe obesity is, of itself, enough to constitute a disability under the ADAAA. When a nonprofit Louisiana addiction treatment facility fired prevention/intervention specialist Lisa Harrison even though she could perform her job, the EEOC sued on Harrison’s behalf, alleging an ADA violation.

This and other cases abound, as the Centers for Disease Control and Prevention estimate that 36.5 percent of U.S. adults qualify as obese and some, when fired or not hired, sue under the ADAAA. The U.S. Supreme Court has declined to hear the appeal of an Eighth Circuit Court of Appeals ruling, which held that an obese job applicant was not disabled under the ADA.

By declining to hear the case, the Supreme Court left unresolved an issue now splitting federal courts, leaving employers without guidance concerning employer responsibilities to obese applicants and employees.

The next time you realize you’ve hired the wrong person, bless them out the door and re-advertise. It’s less painful.

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5 thoughts on “I Fired Her Because She’s Slow, But Now She’s Sued. Can She Win?

  1. The absolute frustration of competing regulations confounding hiring and being forced to keep, versus letting go substandard- or inadequately-performing employees is the tip of the iceberg that has our country divided.
    And such things as documenting “…seven to eight minutes eight to ten times a day.” for smoking, but having to pay for that nearly-an-hour to more-than-an-hour of ‘lost time’ is insane! To be fair and equitable to ALL employees, it should then be required that the rest get an ‘equal time’ to ‘break’ for serenity, or peace, or anything else they wanted. And that’s not fair to the employer.
    There literally is no such thing as ‘equal rights’ as long as there are ANY ‘special rights or allowances’ for anyone.
    Two workers side-by-side should be able and required to perform at the same rate. If they cannot – they are demonstrably unequal in performance and should be paid and/or recognized based solely on their performance. NOT on what the performance lowest limits are, but on their actual performance.
    The results of life are literally based on piecework – those who make or contribute the most pieces – whether it’s letters typed, boards nailed together, miles driven or steps walked…are and should be compensated at the highest rate because they are producing more. If others can’t or don’t keep up, catch up, or hurry up, they need to find something they can excel at, or get paid less because they are producing less.
    In spite of some of the progressives pipe dreams, not everyone can do everything. And life is not a free ride.

  2. Surely she can quantify what Debi was not doing well. Was work not getting done, was it being done too late, did she mention the fast-paced work environment when she hired this person? There is nothing in her story to indicate she talked to this person about any issues with the work, just taking too many breaks to smoke. She also went out of her way to mention this person’s weight. Even though there may have been a legitimate reason to fire Debi she can’t seem to quantify how low productivity was manifested and I think this will cause a problem.

  3. Thanks for your comments on what appears to be a fast-emerging issue. There’s lots of “food for thought” here.

  4. I did notice that although she states that she’s not discriminating over weight, she pointed out that this employee eats all the time and weighs at least 300 lbs. I do wonder if this was a 105 woman who nibbled at her desk all day long while she worked, if this employer would have the same issue. Bringing up the weight at all seems to prove it’s an issue for the employer. Had the letter simply stuck to performance issues, she’d be better off. And in her court case, that’s what she’d better stick to. But she may also want to do some introspection and see if she might actually be attributing laziness to the person solely based on their weight. The only real issue she seemed to bring up was the constant smoke breaks, and that’s easily remedied by having a strict break policy. “You start work promptly at 8, you get a 15 minute break at 10, you get lunch at 12, you get a 15 minute break at 3, and you are off work at 5.” What the person does on that break is their business, and it’s equitable for all employees.

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