Issues in Employment Law

November 2002

When an adverse employment decision is made, statements made by a person involved in that decision-making process that indicate discrimination or retaliation constitute circumstantial evidence for a discrimination or retaliation claim.

The statements need not be made at the same time as the adverse employment action to be relevant. For an ADEA claim, any statement made that could reasonably suggest that age was a substantial motivating factor is evidence of discrimination.

In Fakate v. AETNA, Inc. (No. 01-2494), the Third Circuit Court of Appeals held that the supervisor's statements to the plaintiff that the company was "looking for younger people" and that the plaintiff should look for work elsewhere because he "wouldn't be happy here in the future" became evidence of age discrimination when the plaintiff was later fired. Because these statements were communicated to the plaintiff when he was inquiring about his job status, the court found that this amounted to a warning to the employee that he would be terminated because of his age.

Employees receiving disability benefits from an ERISA plan cannot be arbitrarily have their benefits terminated.

Employers and plan administrators cannot terminate an employee's disability benefits unless they have received extensive medical evidence that warrant such termination. When an employee is on short-term disability and applies for long term disability, absent this extensive medical evidence that the employee is no longer sufficiently disabled, the employee cannot be denied long-term disability benefits under an ERISA plan.

In Norris v. Citibank (No. 01-2886), the Eighth Circuit Court of Appeals held that the plan administrator abused his discretion when he denied long-term disability benefits to an employee currently receiving short-term disability benefits, because he received no new medical evidence warranting such denial. The administrator's reliance on the doctor's statements that the employee (1) was not on pain medications, (2) might be able to work in a job where she could frequently change positions, and (3) might be afraid to return to work, did not constitute sufficient medical evidence. The employer notified the employee that her disability status was being terminated "[d]ue to the lack of sufficient clinical information," but the court explained this is not the appropriate standard to use in terminating her benefits; the employer needs new medical evidence that she is no longer disabled.