United States: Tips For Avoiding "Convincing Mosaic" Of Discrimination

Last Updated: December 8 2015
Article by Ryan N. Parsons

After retaining an employee through two year-long tours of duty in the Middle East and countless military drills amounting to 900 total days of absence, allowing the employee to modify her schedule to account for her military leave, and providing several accommodations when the employee returned from war diagnosed with post-traumatic stress disorder, you might think the employer would get some benefit of the doubt for its facilitation of the employee's important military service. Yet when the employer terminated the employee for undisputed violations of the employer's attendance polices, the United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) concluded that a jury would need to determine whether the employer actually fired the employee because of her military service or her disability.

The employer hired the employee in 2005, fully aware that she was a reservist during a time when the country was fighting two wars in the Middle East. The employer subsequently complied with the Uniformed Services Employment and Reemployment Rights Act over the following six years, retaining her employment and providing extensive time off for:

  • A deployment to Iraq and Kuwait from April 2006 to May 2007
  • A second deployment from April 2009 to August 2010
  • Regular leave for weekend drills, training, and other military activities

Sadly, when the employee returned from her second deployment, she was diagnosed with PTSD. The employer supported her through a hospitalization and Family and Medical Leave Act (FMLA) leave. When she returned to work, the company granted her several accommodations, including allowing her to come late or leave early one day a week to attend therapy, providing her with a quiet space to mediate before work and during breaks, providing her with a mentor, and giving her extra breaks and support for counseling and during panic attacks.

Ultimately, however, the employee's employment was terminated following repeated violations of the employer's attendance policy after steady advancement through the progressive discipline policy. In total, she was late to work 15 times over the course of less than a year, and under the terms of Volvo's attendance policy, her employment was terminated.

As we have summarized it so far, the case paints a picture of a conscientious employer seeking to comply with its obligations under the federal employment laws but having no choice but to discipline an employee for repeated attendance violations. However, when the employer asked for dismissal of the case, the appellate court ultimately concluded that a jury trial would be needed to resolve the case and decide whether the company discriminated because of the employee's disability or military service.

Why? A "convincing mosaic" of circumstantial evidence. In other words, the court allowed the employee to point to many stray bits of evidence of discrimination and combine them to create a question for the jury. The "mosaic" included:

  • Emails between supervisors questioning her specific legal rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA)
  • Emails between supervisors joking about her absences and complaining about her missed time due to her medical issues and military leave
  • The fact that the employee was disciplined at times for small violations of the attendance policy (being less than five minutes late)
  • Alleged statements to the employee that her leave placed an undue hardship on the company

The court found that this collection of evidence was enough to call into question the company's motivations despite the undisputed facts that the employee repeatedly violated the attendance policy.

So what is a conscientious human resources manager or employment lawyer to do when a matter like this hits his or her desk? You have an employee that has been accommodated and assisted for years who consistently fails to show up to work on time. The company has followed all of progressive discipline steps, but the attendance problems persist. What to do but terminate the employee?

There is no surefire way to avoid this scenario, but there are some things that can reduce the chances of this kind of outcome.

  • First, supervisors should never be speculating about employees' legal rights under the employment laws. This is the legal equivalent of the WebMD effect: With so much information available on the Internet, a few quick Google searches can make anyone know just enough to be dangerous. Supervisors should be trained ahead of time to bring these types of questions to HR or the legal department.
  • Second, supervisors must be told in no uncertain terms that making jokes or complaining about employees exercising their legal rights will not be tolerated. Creating and maintaining a culture that respects employee rights can go a long way toward avoiding these kinds of "surprise" emails that typically do not surface until after a claim is filed.
  • Third, if you are going to discipline an employee for "small" violations of work rules, be sure that you are holding all employees to the same high standard. Treating someone in a "protected" class more harshly than someone outside the class is the fastest way to a finding of discrimination or retaliation.
  • Finally, any time a supervisor is talking to an employee about disability accommodations, military leave, FMLA, or any other hot-button issue, there should always be a witness (and preferably someone from HR). That way, you can at least try to avoid the he-said-she-said disputes that can only be resolved by a trial.

Some cases that look like slam dunks on first glance turn out to be more complicated originally imagined. But laying the groundwork and educating managers and supervisors ahead of time can reduce the risk of these kinds of surprises popping up months or years after an employee is terminated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions