After merger, can we refuse to retain one (blind) employee?

We are a contract rehabilitation company in the long term care industry who is negotiating entering into a contract with another nursing home where they have employed a blind physical therapist. They are telling us that this particular employee is constantly threatening suits and discrimination against the facility. They have shared with us that she is down right mean and cannot get along with any of the other staff, and they question on a daily basis on whether she truly can fulfill the obligations of her postion. They would like us to be able to hire and manage the exisiting therapists they have on staff, possibly with the exception of the above mentioned employee, my question is, what would be our position in this situation? Can we hire the other existing employees and not hire this one?

Rita Risser's Response:

If you don't have a lawyer by now, you should. This is a tough one. Here are some ideas.

The best way to deal with this type of situation is for the nursing home to terminate all the employees and invite them to apply for jobs with you. You interview everyone, and base your hiring decision on the interview and references, which would include talking to the supervisors at the nursing home. In fact, you could ask all employees who are interviewing for their evaluations of their co-workers and include those in your decision-making process. Then hire the best, and decline to hire the rest.

Of course, if the only person who doesn't get hired is this person, you probably will get sued, although it sounds like you would win on the merits.

Another approach is to hire everyone, and put everyone on a 90-day introductory (probationary) period during which you will evaluate their work, and terminate whoever does not meet your standards. Again, if only this one person is terminated, you could have a lawsuit.

A third approach is to coach and counsel this employee and work with her to improve, and if she doesn't, terminate. Again, you may be sued.

Actually, if the person who originally hired this woman is still at the nursing home, the best approach would be for her to fire the person. There is a presumption in the law that if the same individual fires the person who hired them, there is no discriminatory intent (in other words, a blind person would not have been hired in the first place by someone who intended to discriminate.)

My guess is you will be sued no matter what, so pick the least disruptive approach (in my opinion, option one above). Good luck!

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