The business judgment rule is powerful but not invincible

So many times I hear plaintiff's lawyers bemoan — and company lawyers applaud — the business judgment rule. The rule is this: A court will not second guess an employer's business judgment in how it runs its business. Yet the rule is not always the Terminator of employment claims. Look at Willnerd v. First National Nebraska , Inc., decided by the 8th U.S. Circuit Court of Appeals on March 13. It’s a case under the Americans with Disabilities Act. Jeffrey Willnerd works at a bank. He came down with a rare disease that caused his voice to cut out and then suddenly return, but it could only return with great effort by him. The condition became worse, and his voice reduced to a whisper. According to the opinion, Willnerd claimed that his bosses expressed concern on how this condition looked to bank customers. Willnerd, a loan officer, then had, or so the opinion relates, his quota raised. He didn't meet it and was fired. The appeals court tossed aside the trial court's summary judgment for the bank. The court rejected the bank's effort to legally protect its decision through exercise of business judgment: "Regarding the quota, we have previously held that it is permissible for a jury to view the imposition of an unattainable goal as evidence of pretext because a jury may reasonably view the goal or production quota as an effort to set up the employee for failure." And here, to boot, the employee who assumed Willnerd's duties failed to perform even at the level of Willnerd and suffered no adverse employment action as a result. So, employees can get to a jury. The plaintiff’s lawyer does not need the smoking gun, the blurted out confession of animus, the raw contrast of disparate treatment. There are other ways, and I will be blogging on them later.