“Beware of the young doctor and the old barber” – Ben Franklin
Although common sense may have been on his side at the time, if Ben Franklin voiced his sentiment in the workplace now, he would likely face and lose an age discrimination case.
Case in point – a legally blind barber sued his former barber shop claiming it terminated him because of his disability after he had tripped over a customer’s legs and tripped over a chair in the waiting room (all in the same day). The Massachusetts Commission Against Discrimination awarded the “blind barber” (as his loyal customers called him) $100,000 in damages.
The case has many lessons for employers:
Don’t assume you will win every lawsuit. There are no “slam dunk” legal cases. You need to show up and put on a solid defense. Here, the employer hurt his cause by not attending several hearings.
The facts, not just “common sense,” matter. Sometimes the law doesn’t seem to comport with common sense. One would think eliminating the risk of having a customer’s ear cut off (much less a horrible haircut) would be a legitimate reason to terminate. Would you want this?
BUT the barber had passed his state board exam, worked for a year without incident, and had customers who knew he was legally blind and didn’t care. Those facts mattered more than the “common sense” fear of a blind person wielding sharp objects.
Don’t play doctor. An employer dealing with an employee with a disability should not presume or make assumptions about the effects of a person’s disability on their ability to do the job. Here, the employer’s defense would have been greatly bolstered if it had obtained a fitness for duty exam by a qualified medical professional that determined the employee could not safely perform his duties and there was no accommodation that would enable him to do so.
Timing and optics are critical. The employer purportedly did not know until the “day of great tripping” that the barber was visually impaired. It then immediately fired the employee, claiming (after the fact) that the employee “had not been pulling his weight.” The “optics” simply do not look good (pun intended).
Get your ducks in a row. An employer seeking to terminate the employment of an individual in a protected classification should, if at all possible, issue written progressive discipline beforehand. Apparently there were no prior written warnings in this case. As the employer had never previously fired another non-disabled barber for simply tripping over a chair or a customer’s legs, the whiff of discrimination in the blow dried (h)air was strong.