Sofia Khaira brings a wealth of experience in navigating the complexities of inclusive talent management and employment law. As an expert in diversity, equity, and inclusion, she has dedicated her career to ensuring that corporate environments are not just legally compliant, but truly equitable for all employees. Today, she shares her insights on the delicate balance of FMLA and ADA compliance, drawing from recent high-stakes litigation to explain how businesses can avoid the pitfalls of retaliatory practices and discriminatory assumptions.
When an employee returns from FMLA leave and is suddenly met with poor performance reviews, how do you distinguish legitimate feedback from retaliatory documentation?
It becomes a matter of timeline and consistency. In cases where litigation arises, such as the recent claims involving Salesforce, we look for signs that a company “engaged atypically” with clients or projects specifically to manufacture a negative record while the employee was away. To protect against this, HR must maintain a rigorous audit trail of performance that predates the leave; if an individual “exceeded” their goals for the entire year before their absence, a sudden pivot to poor performance upon return is a massive red flag. We look for specific, objective metrics—like sales targets or project completion rates—to see if the new feedback matches historical data. When a manager’s tone shifts from praise to extreme scrutiny the moment a “protected leave” box is checked, it creates a palpable sense of unease and suggests the evaluation is merely a pretext for termination.
Companies often cite a “lack of work” when laying off employees who recently took medical leave, even if those workers are internally cleared for new projects. How should a business handle the reassignment process upon a return, and what red flags indicate that a redundancy claim is legally vulnerable?
A genuine reassignment process should be proactive and curated, matching the level of support the employee received before their medical absence. It is highly suspicious when an employee returns to find no assignments waiting for them, essentially being left to independently secure work while their peers are handed projects. For example, if a worker is internally cleared to participate in a new project, as seen in the Feb. 25, 2026, building-related case, but is still terminated for “lack of work,” the disconnect is glaring. Businesses must document every attempt to place the returning staffer and ensure they aren’t being sidelined while others in the same role remain busy. If the “needs of the business” only seem to shrink for the person who took leave, the claim becomes legally vulnerable.
Caring for a family member with a disability can lead to “association discrimination” claims under the ADA. What proactive training steps can managers take to avoid making negative assumptions about a caregiver’s future availability, and how can they balance business needs with the legal protections afforded to these staff?
Training must focus on eliminating the unconscious bias that assumes a caregiver—such as someone looking after a parent with cancer—will inherently be less productive or available. Under the ADA, it is illegal to treat an employee less favorably simply because of their association with a person with a disability. Managers often fall into the trap of “protective hesitation,” where they stop giving high-stakes assignments to caregivers because they assume the employee cannot handle the stress. This creates a self-fulfilling prophecy where the employee’s career plateaus due to a lack of opportunity. We encourage leaders to have open, transparent conversations about workload and support rather than making unilateral decisions that treat the caregiver’s family situation as a negative factor.
If a company blocks a returning employee from internal transfers while claiming their current position is redundant, what are the legal implications? How should leadership reconcile a history of “exceeds expectations” ratings with sudden claims of poor performance during a workforce reduction?
Blocking internal transfers while simultaneously claiming a role is redundant is a classic “pincer movement” that often leads directly to the courtroom. When an organization tells a worker they are no longer needed but prevents them from moving to a department where they are clearly qualified, it reinforces the belief that the termination is personal rather than structural. Leadership must reconcile these contradictions by ensuring that the criteria for redundancy are applied uniformly across the board. You cannot have a star performer who “exceeded” expectations suddenly become “low-performing” and “unplaceable” in the span of a few weeks without raising serious questions about transparency. Providing no assignments to a returning worker while hindering their mobility within the company is often viewed by courts as evidence of a pretextual firing.
What is your forecast for FMLA and ADA litigation trends?
I expect we will see a significant surge in “pretext” litigation, where the primary battle is whether the employer’s stated reason for firing—such as a workforce reduction—is the real reason or a cover for discrimination. Courts are becoming much more sophisticated at spotting these patterns; for instance, the 5th U.S. Circuit Court of Appeals has noted that while employers can fire for performance issues, they must have substantiated evidence that exists independently of the leave request. We are moving into an era where “business needs” will no longer serve as an unquestioned shield for getting rid of employees who exercise their rights. Companies that fail to maintain objective, year-round performance data and transparent transfer policies will find themselves increasingly exposed to costly legal challenges.
