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I N S I D E T H I S I S S U E : Management Toolkit / Tech Strategies / Economy Central by Falcon Bank MANAGEMENT TOOLKIT
The Risk of Silence Clear communication and consistent documentation can protect your business from costly employment disputes. By Betsey Lund Ross
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n today’s litigious environment, employers face increasing risk when routine workplace issues escalate into discrimination claims based on the employee’s age, disability, race, sex, pregnancy, religion, sexual orientation, nationality, or gender identity. In nearly every case, timing, documentation, and communication foreshadow
whether a routine employment decision becomes a lawsuit. Take for example a recent Minnesota Court of Appeals case where an accounts receivable analyst suffered from anxiety, depression, and insomnia that affected her attendance and performance. Although she communicated her struggles and repeatedly sought meetings with
Contributors ________ Betsey Lund Ross is an attorney at Revermann Lund Ross, specializing in employment and business law and estate planning.
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human resources to discuss these medical issues, her employer repeatedly delayed those conversations and ultimately terminated her after being late for work. The Minnesota Court of Appeals held that, based on emails, meeting requests, and the employer’s responses, it was reasonable for the employer to assume the employee’s mental health issues were affecting her attendance and job performance. Furthermore, the Court found the employee’s termination shortly before a scheduled HR meeting suggested her termination was the result of her mental health concerns, not her performance or repeated absences from work. In another Minnesota case, a director of real estate faced heightened scrutiny by his supervisor after disclosing serious cardiovascular and pulmonary issues. The Court noted the employer made informal comments about the employee’s health, reduced the employee’s involvement in key job duties, and eliminated his position after alleging a “reduction in force.” The jury ruled in favor of the employee and awarded him lost wages and over $1 million in attorney fees. On appeal, the court upheld the verdict, citing sufficient evidence that disability
discrimination was a motivator. Where did these employers go wrong? A common theme was insufficient documentation and inconsistent communication. These cases highlight critical moments when employers should proceed cautiously before demoting, transferring, disciplining, or terminating an employee. Risk increases when performance concerns arise soon after protected activity, when supervisors make offhand comments about protected characteristics, when complaints are poorly investigated, or when job changes occur without clear, contemporaneous documentation of legitimate business reasons. These are red-flag moments — times when leadership should pause, involve HR, and evaluate legal risk before taking adverse action. These situations arise not only with medical disclosures, but also when an employee announces a pregnancy, requests a religious accommodation, shares information about their sexual orientation or gender identity, raises pay equity concerns, or reports racial or sexual harassment. Any adverse action taken soon afterward will be closely scrutinized for a discriminatory or retaliatory motive.