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Disability discrimination case against Outback Steakhouse may go forward

On August 11, 2009, in Sensing v. Outback Steakhouse, the First Circuit Court of Appeals in Boston ruled against Outback Steakhouse in a disability discrimination case. (The First Circuit Court of Appeals is a federal appeals court that hears cases from Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico).

The woman who brought the case against Outback, Suzanna Sensing, had diabetes and multiple sclerosis (MS). She claimed that her supervisor terminated her because of her disabilities. Even though she had clearance from her doctor to work, Ms. Sensing’s supervisor believed that she was too much of a “liability” to the company.

As an employment lawyer who represents employees in cases where employers terminate my clients, I found the portion of the decision about the end of Ms. Sensing’s employment interesting. This is how her employment ended: Ms. Sensing’s supervisor told her that the company wanted her to undergo a medical exam to determine if she could perform her job safely. He told her that, while they waited for the results of the medical exam, she “might” be able to work light-duty at half her normal pay rate and for one-third the number of hours she normally worked. In response to this proposal, Ms. Sensing told her supervisor that she did not know if, financially, she could take such a drastic cut in pay while she waited for the results of the medical exam. She said that she wanted to talk about it with her husband. The supervisor said that while she considered the proposal he would look for a doctor to perform the medical exam and then get back to her.

After he spoke to Ms. Sensing about this medical exam, the supervisor never found a doctor like he said he would and he never called Ms. Sensing back. The supervisor claims that he just assumed that Ms. Sensing abandoned her job because she did not call him. Ms. Sensing consulted a lawyer who wrote a letter to the company. The letter asked Outback to allow Ms. Sensing to return to her takeaway position. The company did not respond.

The First Circuit ruled that, under these facts, even though no one at Outback told Ms. Sensing she was terminated, a jury could conclude that Outback terminated Ms. Sensing’s employment. I find this interesting because, in most cases, the employer either clearly terminates an employee or the employee clearly resigns. Sometimes, like in this case, it is not so clear whether the employee resigned or her employer terminated her. In those cases, the First Circuit has determined that a jury must decide whether there was a termination or a resignation. That decision can have serious consequences because, unless there are some very compelling reasons for the resignation, an employee who voluntarily resigns cannot prevail on a claim against her employer for the loss of her job.

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