Labor & Employment Law Daily Wrap Up, WORTH NOTING—Recent developments involving disability discrimination, (Sep 18, 2026)

By WK Editorial Staff

A roundup of recent decisions involving disability discrimination claims of interest to the labor and employment law community.

S.D. Cal.: Fact disputes preserved COVID-19 remote-work accommodation claims. An employee with anxiety, depression, asthma, and sleep apnea worked remotely during the COVID-19 pandemic. After his performance declined, the employer required him to return to the office under a performance-based return policy. The employee requested a remote-work accommodation because of his medical conditions and COVID-19 concerns. The employer denied the request and directed him toward medical leave. The employee took leave, resigned, and accepted a fully remote job. He then sued under the California Fair Employment and Housing Act (FEHA) alleging disability discrimination, retaliation, failure to accommodate, failure to engage in the interactive process, and related claims. The employer moved for summary judgment. The court dismissed the discrimination, retaliation, constructive termination, and derivative claims because the employee failed to show an adverse employment action or evidence of causation. The court denied summary judgment on the accommodation and interactive-process claims, finding triable issues regarding whether remote work was a reasonable accommodation, whether the employee could perform essential duties from home, and whether leave was an effective accommodation (Zuckerman v. Charter Communications, LLC, No. 3:24-cv-00128-WQH-BJW (S.D. Cal. Aug. 31, 2026)).

E.D. Pa.: Employee’s termination stemmed from attendance issues, not discrimination. A railroad employee sued the railroad alleging age discrimination under the ADEA, disability discrimination under the ADA, age and disability discrimination under the Pennsylvania Human Relations Act (PHRA), and FMLA retaliation and interference after he was terminated at age 55 for repeated attendance violations. He had a history of intermittent anxiety, and previously received approved FMLA leave. The employee had a history of discipline issues and attendance violations, which eventually came to a head beginning in 2019, with a series of attendance policy violations. The employee requested new FMLA leave, and the railroad later received paperwork from his physician stating that he “had been diagnosed with situational anxiety and required intermittent leave.” Prior to approving the employee’s previously requested FMLA leave, the railroad held a disciplinary hearing, determining that the employee did not have approved FMLA leave at the time of several attendance violations. The railroad terminated the employee, and his appeal of the termination failed. The employee filed suit, and the railroad moved for summary judgment. The court granted the motion. The court held that the age discrimination claim failed because the employee identified no younger comparator who received better treatment. The court held that the disability claim failed because the decisionmakers did not know about his anxiety. The court held that the FMLA claims failed because the termination process began before the leave request, and the employee’s termination “was based on his attendance policy violations in September 2020, which occurred well before he applied for FMLA leave” (Bisher v. National Railroad Passenger Corp., No. 2:22-cv-02094-GAM (E.D. Pa. Sept. 2, 2026)).

S.D.N.Y. Employee fired for performance, not age, disability discrimination. An employee who survived pancreatic cancer was transferred during a 2019 reorganization. He alleged that managers promised to preserve commission compensation after the transfer. The employer instead placed him on a new salary and bonus plan effective October 2022. Prior to this change, the employee had secured a $16.5 million dollar contract, and contended he should receive a commission for the contract. Around the same time, managers documented performance deficiencies. In June 2023, the employee filed an EEOC complaint alleging “discrimination based on age and perceived disability, and retaliation.” The employee was eventually placed on a performance improvement plan, and was terminated in 2024. He sued for age and disability discrimination, retaliation, and unpaid commissions under the ADEA, ADA, New York State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), and New York Labor Law (NYLL). The employer moved for summary judgment. The court dismissed the discrimination claims because no evidence linked the challenged actions to age or perceived disability, and the employee failed to show causation and pretext. The court also dismissed the employee’s retaliation claims regarding the EEOC complaint because the employer “carried its burden of demonstrating legitimate, non-discriminatory reasons for both the negative evaluation and the PIP.” The court denied summary judgment on the commissions claim because of a “dispute of material fact” (Krimsky v. WestRock Co., No. 1:23-cv-06252-MMG (S.D.N.Y. Sept. 9, 2026)).

M.D. Ga.: Documented performance failures defeated disability discrimination, retaliation claims. A receptionist who worked for a scrap metal recycling and steel manufacturing company had a congenital heart condition known to her employer throughout her employment. Her performance history included repeated deficiencies involving unfinished tasks and failure to follow instructions. After returning from her honeymoon—during which the office manager and general manager discovered incomplete work in her office, which was a “disaster”—she informed her supervisor that she needed medical leave for heart surgery. The employer disciplined her for unfinished filing and her response to corrective action. She was later suspended for one day for an unprofessional customer email and mishandling a requisition that caused the company “a $50,000 loss on [its] profit and loss statement.” After requesting FMLA leave, the employee failed to process a requisition that caused about $70,000 in understated expenses. The employer terminated her, and she filed suit, alleging ADA discrimination and retaliation plus FMLA interference and retaliation. The employer moved for summary judgment on all claims. The court granted the motion because her documented performance and discipline issues defeated any inference arising from temporal proximity. The employer’s longstanding knowledge of the heart condition also undermined an inference of disability discrimination. The employee presented no evidence of pretext or better treatment of similarly situated workers. The court deemed the FMLA interference claim abandoned because the employee did not defend it (Sewell v. Schnitzer Southeast, LLC, 4:25-cv-00170-CDL (M.D. Ga. Sept. 4, 2026)).

D.S.C.: Employer refused to restore 74-year-old employee after surgery, medical clearance. A 74-year-old restaurant general manager needed to take FMLA leave for knee surgery. A week before the surgery, his managers came to his store and asked him about retirement. He told them he intended to keep working for “approximately three more years.” One of the managers then directed him to leave the workplace, and subsequently replaced him with a substantially younger worker. After his physician cleared him to return, the employer refused reinstatement and instead offered $13,000 in severance. He did not take the severance, and in subsequent discussions, requested $18,000. He was allegedly never given the opportunity to return to work. The employee eventually accepted the severance. He subsequently sued his employer, alleging age discrimination under the ADEA, FMLA retaliation, and FMLA interference. The employer moved for summary judgment. Although the magistrate’s report recommended granting the motion, the district court denied it, holding that a jury could find the employer “ended the employment relationship rather than [the employee] voluntarily retiring,” and that the employer’s conduct “manifested a clear intention to dispense with [the employee’s] services.” The court also found fact issues on pretext and on whether the employer interfered with his right to restoration following FMLA leave (Buchanan v. Performance Management Group, LLC, No. 3:24-cv-06798-SAL (D.S.C. Sept. 8, 2026)).

N.D. Cal.: Employee assaulted by supervisor, alleged retaliation by supervisor’s replacements. An employee who started working remotely for a semiconductor company in 2021 was notified in 2022 that the company was requiring employees to return to the office “at least two days a week….” His supervisor, who he had had difficulty with, had previously pressured him to fire older workers and later harassed and assaulted him after he refused. The stress from the harassment allegedly caused the employee to have a heart attack. After an investigation, the company transferred the supervisor, but the employee’s new supervisor later issued a final warning that eliminated hybrid work eligibility. The employee alleged that the new supervisor retaliated against him, and reported it to the president of the company. The employee continued working remotely and was terminated for violating the return-to-office policy. He sued for retaliation, disability discrimination, failure to accommodate, harassment, assault and battery, and related claims. The employer and individual supervisors moved for summary judgment. The court dismissed the disability, accommodation, and harassment claims because the employee failed to show a qualifying disability or harassment based on protected status. The court allowed the retaliation claims to proceed because evidence of continuing antagonism and possible pretext created triable issues of fact. The court also allowed the assault and battery claim to proceed because the alleged conduct could support a finding of intent to injure (Smahi v. STMicroelectronics, Inc., No. 5:23-cv-06645-PCP (N.D. Cal. Sept. 8, 2026)).

Cases: DisabilityDiscrimination Discrimination Discharge Retaliation AgeDiscrimination StateLawClaims Covid19 EmployeeLeave TortClaims