When 'performance problems' are actually a disability

Brian Lee says his employer relabeled his ADHD symptoms as "performance deficiencies" and terminated him a result. The employer, Red Hat, says it was simply managing a struggling employee. A federal court is about to sort out who's right.

Lee, a senior software engineer, went to work for Red Hat because of its reputation as neurodivergent-friendly and inclusive. He disclosed his ADHD to his supervisor shortly after being hired in 2022. In October 2024, he received a written warning for collaboration, communication, and timeliness issues. He was later pulled off a major project. He also learned his "evolving performer" rating made him ineligible for a bonus he says he wasn't warned about.

He complained internally and to the EEOC. Red Hat investigated and found nothing. Then things got worse. In April 2025, the company granted some accommodations — dedicated focus time, remote work — but denied others, including extra time on tasks. In July, he was fired for not meeting the goals of his performance improvement plan.

Four claims followed in Lee's lawsuit: failure to accommodate, disability discrimination, retaliation, and wrongful discharge.

Temporary accommodations don't rewrite the job description

One of the more persistent myths in ADA litigation that if an employer temporarily accommodates an employee in a certain way, it has forever admitted that the accommodation is reasonable.

The 8th Circuit just reminded everyone that's not how the ADA works.

In Kendall v. Zoltek Corp., an employee at a carbon-fiber manufacturing facility injured her back and developed sciatica. Initially, her doctor cleared her to return to work without restrictions. Later, however, she requested an accommodation allowing her to sit periodically during her shifts. The company granted that request for several months while it evaluated her condition.

Eventually, though, the medical restrictions became permanent—and much more limiting. By the time her employment ended, she couldn't stand for more than 20 to 30 minutes, couldn't bend, stoop, kneel, crawl under machinery, or lift more than 10 pounds. Her employer's production operator position required employees to stand throughout 12-hour shifts while performing physically demanding work. After she exhausted her leave, the company terminated her employment.

Winning a disability discrimination claim doesn't necessarily win an ADA lawsuit

Winning a disability discrimination claim doesn't necessarily win an ADA lawsuit. The 2nd Circuit's recent decision in Cangro v. Department of Finance is a perfect example. The employer successfully defeated the employee's disability discrimination and retaliation claims—but still must defend a reasonable accommodation claim.

The employee suffered from serious respiratory conditions. After working remotely during the pandemic, he requested permission to work his required in-office days from the employer's Staten Island office instead of its Manhattan headquarters, claiming the commute and office environment aggravated his medical issues.

The employer said no.

The 2nd Circuit agreed that the employee hadn't plausibly alleged disability discrimination or retaliation. There wasn't sufficient evidence of discriminatory intent or a qualifying adverse employment action. Those claims were dismissed.

But the reasonable accommodation claim survived. 

The ADA is a two-way street

Once an employee requests an ADA accommodation, the employer has to give them exactly what they ask for… is NOT the law. In fact, it's the opposite of the law.

The ADA requires a reasonable accommodation—not the employee's preferred accommodation. Further, the ADA is a two-way street; employees have obligations, too.

One recent decision, Belval v. Electric Boat Corp., drives those points home.

A disability is not a license to harass

Federal disability discrimination laws exist to ensure that people with disabilities are judged on their abilities—not their diagnoses. They require reasonable accommodations. They prohibit discrimination. They level the playing field.

What they do not do is excuse misconduct.

That's the important takeaway from Brantley v. University of Texas at Austin, a recent 5th Circuit decision that rejected a student's attempt to use the Rehabilitation Act as a shield against discipline for repeatedly harassing a professor.

The facts are difficult.

After taking one of the professor's classes, the student continued emailing him. Not once or twice. According to the court, hundreds of times.

The emails ranged from academic topics to deeply personal discussions of trauma, mental health, and self-diagnosis. The professor repeatedly tried to establish boundaries. He provided information about campus mental health resources. He asked that future communications be limited to academic matters. Eventually, he pleaded with her to stop contacting him altogether, explaining that the constant emails were causing him "a tremendous amount of distress."

She kept emailing.

The university ultimately placed her on disciplinary probation.

Unpaid leave is an ADA reasonable accommodation; it just can't be the only one you offer

If your ADA accommodation policy starts with "take unpaid leave," you're doing it wrong.

Just ask the 15 Dunkin' Donuts franchisees that recently agreed to pay $250,000 to settle an EEOC disability discrimination lawsuit.

According to the EEOC, these franchisees maintained a policy that refused to provide reasonable accommodations to employees with medical restrictions. Instead, workers were placed on unpaid, indefinite leave until they could return to work with no restrictions whatsoever. In other words, if an employee wasn't "100% healed," they weren't working.

The EEOC calls this a "100%-healed" policy. The ADA calls it unlawful.

COVID-era remote work doesn't make telework a permanent ADA accommodation requirement

Remote work isn't the ADA accommodation silver bullet employees think it is.

The 5th Circuit just drove that point home in Hayes v. GStek, Inc., a case involving an Army contractor whose employee requested full-time remote work after being diagnosed with autism, depression, and social anxiety disorder.

And the court's message was unmistakable: just because a job could be performed remotely during COVID doesn't mean remote work is now a permanently reasonable accommodation under the ADA.

That distinction matters. A lot.

Mental Health Is Now a Retention Problem. For Some Employers, It's Also a Legal One.

One in four employees have considered quitting because of their mental health.

Let that sink in.

Not compensation. Not commute. Not a bad boss. Mental health.

The latest NAMI-Ipsos Workplace Mental Health poll paints a pretty stark picture: employees are stressed, overwhelmed, and—critically—don't feel safe talking about it at work. Nearly half fear judgment. Even fewer trust HR or leadership with these conversations.

That's not just a culture problem. It's a retention problem. And, increasingly, a legal one.

Your ChatGPT history as a hiring test? That's a hard no.

"Take out your phone and open your ChatGPT app. Type this prompt: 'Based on my past conversations, analyze my behavioral tendencies.'"

In a Reddit post that has gone viral, that's what someone claims just happened to them during a job interview.

If that interview scenario is real, the issues aren't just ethical. They're also potentially legal.

Pro tip from pop culture: Don't fire your employees while they are in the ER

"If you fire her, she will sue you and I will testify."

That's not a plaintiff's lawyer talking. That's Dr. Robby, the chief of emergency medicine on The Pitt, grabbing a patient's phone and putting her boss on notice while she's being treated for what looks like SIRS—a systemic inflammatory response that's threatening her leg and possibly her life.

Debbie Cohen is in the ER. Her rash is spreading. Three senior physicians are at her bedside. And her biggest fear is missing work.

Her boss keeps calling, accusing her of exaggerating, dangling termination if she doesn't show up. At one point she pleads, "Please! Please don't fire me!"

Filing an EEOC charge doesn’t automatically buy an employee job immunity

Some believe that once an employee complains to the EEOC, discipline must stop. Supervisors must tread lightly. Performance problems must be ignored.

The 4th Circuit just reminded everyone that's not how Title VII works.

In Andrews v. DeJoy, the court affirmed summary judgment for the Postal Service on a retaliation claim brought by a clerk who had a long history of documented performance problems — both before and after she filed an EEOC complaint.

After loudly clashing with her supervisor and being escorted from the building by police, the employee, a clerk, filed an EEOC charge. After her post-suspension return to work, management continued documenting attendance issues, insubordination, and performance deficiencies, eventually issuing a notice of removal (later reduced to a suspension through arbitration).

She sued, claiming retaliation. She lost.

4 solid steps to win your disability discrimination/reasonable accommodation case

The 6th Circuit just delivered an opinion that reinforces two lessons employers should already know: accommodations require clarity and documentation, and timecard falsification is a litigation killer.

Energy Harbor Nuclear Corp. reassigned a maintenance supervisor with nearly 30 years of service to 12-hour night shifts. He complained that the schedule was worsening his Type 2 diabetes, specifically that the night shift was "killing" him. Management told him to provide medical documentation if he needed an accommodation. Upon his presentation of a doctor's note, the company moved him to day shift as requested.

Then came the problem. The company audited his outage time entries against objective badge-swipe data from the plant's protected area. The audit revealed discrepancies in 21 of 26 entries, including 10 overstated by more than 30 minutes. Management interviewed him (with a witness present), reviewed security data, escalated the issue to HR, and a separate internal review team conducted its own investigation. The company fired him for falsifying time records.

He sued for disability discrimination, failure to accommodate, and retaliation.

"We can't do that" is not an ADA interactive process. Or is it?

The 6th Circuit just handed employers a clear win in Bowles v. Chicken Salad Chick. The court held that a fast-casual restaurant did not have to accommodate a cashier/service employee who requested to sit for five minutes after every ten minutes of standing. That request would have eliminated essential job functions and fundamentally changed the job.

The Sixth Circuit held that an employer cannot be liable for failing to engage in the ADA interactive process where the employee's requested accommodation is unreasonable as a matter of law, because an interactive-process claim presupposes the existence of a viable reasonable accommodation.

What does a font have to do with an employer's values? Apparently, a lot.

The State Department just ordered diplomats to ditch Calibri and return to Times New Roman as the required typeface in all official communications. Secretary Marco Rubio framed this change not as a typography choice, but as a way to "abolish yet another wasteful DEIA program."

Calibri, however, didn't become the State Department's font because someone wanted to score diversity points. It was chosen because disability and accessibility groups recommended it. Plenty of research shows that sans-serif fonts can be easier to read for people with certain visual impairments. That's not ideology. It's science + usability.

Imagine being so committed to rolling back inclusion that you turn fonts into a culture-war battlefield.

Target's new "smile" policy has some serious legal problems

You can't policy your way to happy employees. But Target sure is trying.

The retailer just rolled out its new "10-4" policy. Employees must now (1) smile, make eye contact, wave, and use "welcoming body language" within 10 feet of any customer, and (2) when within 4 feet, personally greet guests and "initiate a warm, helpful interaction."

We all appreciate good customer service. But from an employment law and HR perspective, this policy raises some serious red flags.

Correcting the press: unpaid leave after the FMLA expires

Let's play one of my favorite games: correct the press.
The Issue: unpaid leave as a reasonable accommodation under the ADA.

Cliff Kaplan, 65, worked for a beverage distributor at Beechwood Sales & Service for 16 years. Then came a diagnosis of stage-four esophageal cancer. He took unpaid medical leave under the FMLA while he underwent chemotherapy.

Twelve weeks later his manager called. His FMLA had just expired, and the company needed him back immediately. When Cliff said he wasn't physically able to return, they fired him. No severance, no discussion, no attempt to work it out. Just a letter ending a 16-year career.

100% healed policy = 100% ADA violation

This one's for every business who's ever said to a sick or injured worker, "We can't bring you back until you're 100%."

The EEOC announced a $200,000 settlement with Elon Property Management after it required employees returning from medical leave to provide a doctor's note saying they could return to work "without restrictions." Elon also required a doctor to sign off on a copy of the employee's job description — and refused to let employees back if they couldn't meet every demand.

The EEOC's response was clear: "Policies that require an employee to be 100% before returning to work are unlawful. Employers must assess whether an employee can perform the job with or without a reasonable accommodation."

🚨 You can't ask that: Disability questions in hiring 🚨

Yesterday, a commenter noted on LinkedIn that many individuals with disabilities suffer in silence at work because they're afraid to disclose their disability during the hiring process—worried it might get them screened out. "There are dueling incentives for claiming or not claiming a disability, and the pendulum has swung hard towards staying as masked as possible if you don't want to end up in application purgatory," he wrote.

I wholeheartedly disagree. It is 100% illegal to ask an applicant this question in a job interview: "Do you have any medical conditions we should know about?" It's a per se ADA violation and a lawsuit waiting to happen.

Just because an employee says he has a disability doesn't mean he actually does

The University of Nebraska fired James Trambly, an IT support specialist, for violating university policy by removing a hard drive from a university-owned computer without authorization. The termination followed a year of documented performance issues—poor communication, overstepping into colleagues' work, visible frustration, interrupting clients, and spending excessive time on service calls.

After his termination, Trambly sued for disability discrimination and retaliation, claiming the university was aware of his "mental impairment": attention deficit/hyperactivity disorder (ADHD).

Breaking down the proper way to handle an extended medical leave of absence

I spend a lot of time calling out employers who mishandle workplace issues. Today, I'm highlighting one that got it right.

Leanna Coffman was a Nexstar Media employee who suffered serious pregnancy-related complications and took 12 weeks of FMLA leave after giving birth. When her FMLA leave expired, Nexstar continued to provide support—giving her months of additional time off and approving her short-term disability benefits.

But when she still couldn't return to work six months after going out on leave, and also couldn't provide a clear return date, Nexstar made the difficult decision to terminate her.

So she sued for discrimination and FMLA retaliation. She lost on all counts. Why? Because Nexstar handled this situation correctly. They followed the law, communicated clearly, documented their decisions, and gave Coffman much more than the law required.