Employment Law Disability Accommodation: NY Employers Using Performance Improvement Plans (PIPs) To Retaliate

By David DeToffol | March 12, 2024
PIP Documents

I. Why do Employers Use Performance Improvement Plans?

How an employer presents the purpose of a Performance Improvement Plan isn’t usually how it is used in practice. According to most employers, a Performance Improvement Plan (PIP) is a roadmap created by a supervisor to help the employee improve their work product. Put another way, it is supposed to help an employee get better at their job. This might be part of the employer’s motivation, but it is often not the whole picture.

Often, a Performance Improvement Plan (PIP) is used to create a paper trail that the employer will use to justify an eventual termination. Again, this is not always the case. Sometimes, an employer does want to help an employee improve, but as we see over and over again, it is normally used to allow the employer to point to a record of poor performance and the rationale for termination.

Why would an employer want to be able to justify a termination based on poor performance? The employer can use the PIP to show that the termination was taken based on documented performance issues, as opposed to illegal grounds, like disability discrimination or retaliation.

II. A Hypothetical Example of An Employer Using a PIP to Protect Themselves

Let’s say that Mark works in customer service. He has a disability, and a few months ago, he asked his employer to allow him to work from home twice a week as an accommodation for his disability. The employer grants the accommodation, but Mark’s supervisor (Henry) is unhappy that Mark was given the accommodation. He thinks Mark is just lazy. So, in retaliation for Mark requesting and getting an accommodation, Supervisor Henry starts being extra critical of Mark’s work and unfairly doubles the amount of Mark’s workload. Supervisor Henry knows that he can’t openly terminate Mark so soon after Mark’s accommodation request because it would be obvious that he was terminating him for requesting the accommodation. Instead, Supervisor Henry issues Mark a Performance Improvement Plan 2 months after his accommodation and then terminates Mark 3 months later. The given reason for the termination was lack of improvement or poor performance.

In this hypothetical, the employer may point to the PIP to try to demonstrate that Mark was just having issues with his performance the whole time. So, how could Mark possibly claim he was retaliated against for requesting an accommodation?

III. Overcoming a Performance Improvement Plan Motivated by Retaliation

There are often ways to overcome a Performance Improvement Plan Motivated by Retaliation, such as demonstrating that the PIP was inaccurate. An employment attorney would be the expert to consult on this matter.

Your voice matters in the face of workplace retaliation, and seeking justice is your right. Contact DeToffol & Gittleman today to schedule a comprehensive and confidential consultation regarding your workplace discrimination claim.

For further information on Employer’s Obligation to Provide Reasonable Disability Accommodation: https://ddtlaw.com/the-new-york-employers-obligation-to-provide-reasonable-disability-accommodation/

The information provided in this blog post is for informational purposes only and is not intended to be legal advice. Laws vary significantly from one jurisdiction to another, and therefore, the concepts discussed here may not apply universally or to every case. Furthermore, laws, especially in this field, are subject to frequent changes, so there is no guarantee that the information presented is current or up to date at the time of reading.