Employment: Colorado Federal Court Allows Probationary Employee to Pursue ADA Claim

04.01.12

A Colorado federal district court, in Jacobsen v. Dillon Companies, Inc., recently ruled that a probationary employee could pursue an ADA claim against her employer after she was discharged for taking two weeks off during her probationary period to recover from surgery for breast cancer. The employee had also indicated that she would need additional time off for chemotherapy sessions. The employer argued that the employee was not "otherwise qualified" for the position because she was unable to complete her probationary period due to the surgery. The court rejected this argument because it considered the employer's argument an attempt to re-characterize the employee's job performance as a job requirement.

This case should serve as a reminder that the classification of an employee as "probationary" provides no protection from federal anti-discrimination claims.

By Ross A. Crutchfield, rcrutchfield@dsda.com

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