Employers sometimes believe that eliminating a job position instead of terminating an employee for poor performance gives them a "get out of jail free" card for purposes of avoiding legal claims associated with the decision. However, even if the company contends that performance was not the motivating reason for the decision, employees can claim discrimination associated with a position’s elimination. A new decision from the Eleventh Circuit Court of Appeals (which includes Georgia) demonstrates how an employer can defend itself against claims that a job elimination resulted from discriminatory intent. 

In Butler v. Econ-O-Check Corp., the plaintiff suffered from Crohn’s disease and had been working from home during the COVID-19 pandemic as an accommodation for her vulnerability to infection. Nine months into this accommodation, the employer terminated the plaintiff, explaining that it was eliminating her position based on an internal restructuring. She filed suit under the Americans with Disabilities Act, alleging that her duties were distributed to several nondisabled employees, and that the employer offered shifting and inconsistent reasons for the decision because a manager had complained about her job performance.

The Eleventh Circuit rejected this reasoning, affirming dismissal of the lawsuit. The plaintiff offered no evidence to dispute that her position was eliminated due to business reasons. The fact that her remaining job duties were absorbed by nondisabled co-workers is not evidence of discrimination. The company’s concerns over the plaintiff’s performance were not inconsistent with its explanation for the decision. Employers may eliminate the positions of poor-performing employees without following their progressive disciplinary policies to the final step.

In many cases, employee performance contributes to a company’s decision to eliminate their position. Companies often conclude after reviewing these issues that they can get along without the need to replace the underperforming employee. Instead of ignoring the performance issues, employers should document that they were a factor in making the decision to eliminate that job. Mixed performance and economic reasons for the decision do not by themselves indicate contradictory or shifting grounds or raise questions over a potential discriminatory intent.

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