Understand the Legal Protections

Federal and state laws provide a robust framework against disability-based termination. Title I of the ADA prohibits private employers with 15 or more employees, as well as state and local governments, from discriminating against qualified individuals with disabilities in hiring, firing, advancement, compensation, and other terms of employment. The ADA also requires employers to engage in a good-faith interactive process and provide reasonable accommodations unless doing so would cause undue hardship.

Many states extend protections even further. For instance, California's Fair Employment and Housing Act (FEHA) covers employers with as few as five employees and defines disability more broadly than the ADA. Illinois's Human Rights Act similarly provides wider coverage. Regardless of where you work, the core principle is the same: your employer cannot fire you because of your disability if you can perform the essential functions of your job with or without reasonable accommodations.

Critically, the ADA does not require employers to lower their performance standards. However, employers must provide reasonable accommodations before penalizing you for performance shortfalls caused by a disability. When an employer skips that obligation and jumps straight to termination, it raises a red flag for discrimination.

The McDonnell Douglas Burden-Shifting Framework

Because employers almost never say “we fired you because of your disability,” most disability discrimination cases rely on circumstantial evidence analyzed through the McDonnell Douglas burden-shifting framework. This three-step legal test, established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs how courts evaluate indirect proof of discrimination.

The framework works like a tennis match: the burden of production bounces between employee and employer across three stages. Understanding each step is essential to building a winning case.

Step 1 — Establish Your Prima Facie Case

To get your case off the ground, you must show four elements:

1. Protected status: You have a disability as defined by the ADA—a physical or mental impairment that substantially limits a major life activity.
2. Qualification: You were qualified for your position, meaning you could perform the essential job functions with or without reasonable accommodation.
3. Adverse action: Your employer terminated you (or took another adverse employment action such as demotion or pay reduction).
4. Circumstances suggesting discrimination: The facts surrounding your termination raise an inference that disability played a role—for example, you were replaced by a non-disabled employee, or the firing closely followed a disability disclosure or accommodation request.

Establishing a prima facie case creates a legal presumption that discrimination occurred and forces the employer to respond.

Step 2 — The Employer States a Legitimate Reason

Once you establish a prima facie case, the burden shifts to your employer to articulate a legitimate, non-discriminatory reason for the termination. The employer does not have to prove the reason is true at this stage—only that it has one. Common reasons include poor performance, policy violations, attendance issues, or restructuring.

Almost every employer will meet this burden because the bar is intentionally low. The real battle happens in Step 3.

Step 3 — Prove the Performance Excuse Is Pretext

This is where your case is won or lost. You must demonstrate that the employer's stated performance reason is false and that your disability more likely motivated the termination. Courts have recognized multiple ways to show pretext:

• The stated reason has no basis in fact. If the employer cites performance problems that simply did not occur or are unsupported by documentation, a jury can infer the explanation is fabricated.
• The stated reason was insufficient to actually motivate termination. If other employees committed the same or worse infractions without being fired, the employer's selective enforcement suggests a hidden motive.
• The stated reason is contradicted by the employee's record. Strong performance reviews followed by sudden negative write-ups—particularly after a disability disclosure—are classic pretext indicators.
• The employer's explanation shifts over time. When the story changes between the termination meeting, EEOC response, and deposition testimony, courts view those inconsistencies as evidence of dishonesty.

Types of Evidence That Expose Pretext

1. Performance Review History

Your historical performance evaluations are among the most powerful pieces of evidence. If you received satisfactory or superior reviews for years and then suddenly started getting negative write-ups after disclosing a disability or requesting accommodations, that contrast is telling. Courts have recognized that evidence of satisfactory or superior performance evaluations may tend to show the illegitimate nature of the employer's articulated reason for termination.

2. Comparative or “Similarly Situated” Evidence

Show that non-disabled employees who had similar or worse performance issues were not fired. This is one of the most probative ways to demonstrate pretext. If a coworker without a disability missed the same deadlines but received coaching instead of termination, the disparity speaks volumes.

3. Timeline and Proximity

When termination occurs shortly after a disability disclosure, accommodation request, or medical leave, the timing itself is circumstantial evidence of discriminatory motive. Courts call this “temporal proximity,” and the closer the events, the stronger the inference.

4. Discriminatory Comments

Statements from supervisors or managers—calling you “unreliable,” questioning whether you can “handle” the job after learning about your condition, or expressing frustration about your medical leave—can constitute direct evidence or strong circumstantial evidence. Courts have recognized that anecdotal evidence of discriminatory conduct can support a showing of pretext if the comments were connected to the adverse employment action.

5. Shifting or Inconsistent Explanations

If your employer gives one reason in your termination letter, a different reason in its EEOC position statement, and yet another during litigation, those shifts undermine credibility. In Cullen v. Select Medical Corp., the Third Circuit reversed a dismissal because the employer's explanations for firing were varied enough to undermine its asserted legitimate reason.

6. Failure to Follow Internal Procedures

Employers typically have progressive discipline policies. If management skipped warnings, bypassed performance improvement plans, or failed to follow its own handbook, that procedural deviation is evidence of pretext.

7. Documentation Timing

Watch for retroactive write-ups or a sudden paper trail that appears only after you disclosed a disability. Employers may suddenly start documenting minor issues that were previously overlooked or implement unrealistic standards that are impossible to meet. When documentation is manufactured after the fact, it suggests the employer is building a case to justify a decision already made.

How Accommodation Failures Strengthen Your Claim

Under the ADA, employers must engage in an interactive process to identify reasonable accommodations when they know about your disability. If your employer fired you for performance issues without any discussion about accommodations for your known disability, your rights may have been violated.

Common accommodation failures that bolster discrimination claims include:

• Ignoring or refusing to discuss your accommodation request
• Providing an accommodation and then withdrawing it without explanation
• Citing performance problems that the requested accommodation would have prevented
• Punishing you for disability-related absences that should have been accommodated

The failure to engage in the interactive process can itself be a violation of the ADA, and it creates a strong inference that the employer was not genuinely concerned about performance—it was looking for a reason to terminate.

Real-World Patterns of Pretextual Terminations

While every case is fact-specific, disability discrimination often follows recognizable patterns:

The Post-Disclosure Paper Trail

An employee with a strong track record discloses a disability or requests leave. Within weeks, management begins issuing write-ups for issues that were never flagged before. The employee is placed on a performance improvement plan with unrealistic goals, set up to fail, and terminated when they inevitably fall short.

The Return-From-Leave Termination

An employee takes FMLA or disability leave for surgery or treatment. Upon return, they find their role has been “restructured” or are told that performance expectations have changed. They are terminated within days or weeks for failing to meet new benchmarks they were never given a fair chance to achieve.

The Accommodation-Request Retaliation

An employee asks for a reasonable accommodation—perhaps modified hours, a sit-stand desk, or remote work during flare-ups. Instead of engaging in the interactive process, the employer starts treating the employee differently, isolating them from projects, and documenting every minor error. The termination soon follows.

Filing Deadlines and the EEOC Process

Time limits are critical in disability discrimination cases. A charge of discrimination generally must be filed with the EEOC within 180 days of the alleged discrimination. You may have up to 300 days if your state has its own anti-discrimination enforcement agency. After the EEOC investigates and issues a right-to-sue notice, you can file a lawsuit in federal court.

State deadlines vary. Some states have separate agencies with their own filing periods. Acting promptly is essential—waiting too long can forfeit your rights entirely, no matter how strong your evidence.

Immediate Steps to Protect Yourself After Termination

1. Preserve all documents. Save copies of performance reviews, emails, text messages, write-ups, accommodation requests, and any communications referencing your disability. Do this before you lose access to company systems.
2. Write a detailed timeline. Document every relevant event while your memory is fresh: when you disclosed your disability, when you requested accommodations, when write-ups started, what supervisors said, and the date of termination.
3. Identify witnesses. Coworkers who observed disparate treatment, heard discriminatory remarks, or can speak to your actual performance are valuable.
4. Do not sign a severance agreement without legal review. Severance packages often include broad releases of all legal claims. An attorney can assess whether the offer is fair or whether you are waiving rights worth far more.
5. Consult an employment attorney promptly. Filing deadlines are strict, and an experienced disability discrimination lawyer can evaluate your evidence, guide your EEOC filing, and protect your claim from procedural pitfalls.

Key Takeaways

• Employers commonly cite “performance issues” as cover for disability discrimination. The legal term for this false excuse is pretext.
• The McDonnell Douglas framework provides a structured three-step process for proving discrimination through circumstantial evidence.
• You must show both that the employer's stated reason is false and that disability was a motivating factor.
• Strong historical performance reviews, comparative evidence of disparate treatment, suspicious timing, shifting explanations, and accommodation failures are your most powerful tools.
• File your EEOC charge within 180–300 days. Missing the deadline can be fatal to your case.
• Preserve evidence and consult a lawyer immediately after termination.

Frequently Asked Questions

Can my employer fire me for poor performance if I have a disability?

Yes, employers can hold disabled employees to the same legitimate performance standards as everyone else. However, they must first provide reasonable accommodations for your disability. If the performance issues are caused by or related to your disability and the employer failed to accommodate you, the termination may be discriminatory.

What is “pretext” in a disability discrimination case?

Pretext means the employer's stated reason for firing you is not the real reason. It is a false or misleading justification used to hide unlawful discrimination. You prove pretext by showing inconsistencies, contradictions, or other evidence that the performance excuse does not hold up.

What kind of evidence do I need to prove pretext?

Useful evidence includes positive past performance reviews, emails or statements showing discriminatory attitudes, proof that non-disabled employees with similar issues were not fired, documentation of sudden write-ups after disability disclosure, the employer's failure to engage in the accommodation process, and shifting explanations for your termination.

How long do I have to file a disability discrimination complaint?

You generally have 180 days to file a charge with the EEOC, or up to 300 days if your state has its own enforcement agency. State deadlines may differ, so consult an attorney to confirm your specific filing window.

Does the employer have to prove its reason for firing me is true?

No. Under the McDonnell Douglas framework, the employer only needs to articulate a legitimate, non-discriminatory reason. The employer does not have to prove the reason is true—only that it has a facially valid explanation. The burden then returns to you to show the reason is pretextual.

What if my performance issues are caused by my disability?

If your performance problems stem from your disability, your employer is required to explore reasonable accommodations before taking disciplinary action. Firing you for disability-related performance shortfalls without offering accommodations may violate the ADA.

Can I still have a case if I received some negative performance reviews?

Yes. You do not need to prove perfect performance—only that disability was a motivating factor in the termination decision. If negative reviews appeared suspiciously after a disability disclosure and contradict your prior record, they may actually support your case rather than undermine it.

Should I file with the EEOC on my own or hire an attorney?

While you can file on your own, working with an attorney is strongly recommended. Mistakes on the EEOC charge form—such as failing to check the correct boxes or omitting key facts—can limit or even eliminate certain claims later. An attorney ensures your charge preserves all viable legal theories.