Employee Survival Guide® - Performance or Disability? The Emerging Pattern Highlighted in Walsh v. Fitch Solutions

Episode Date: June 4, 2026

Comment on the Show by Sending Mark a Text Message.A high performer starts struggling right after a management change, then migraines and stress symptoms enter the picture and suddenly everything is labeled “performance.” That storyline shows up in more disability discrimination claims than many employers want to admit, and the legal risk often comes from one simple moment: the employer is on notice of a medical condition but keeps managing as if it does not exist.We walk through the emerging pattern using the allegations in Walsh v Fitch Solutions, Inc. and zoom out to the bigger ADA and EEOC landscape. The key isn’t proving the workplace “caused” a condition. Under the Americans with Disabilities Act, the pressure point is what happens after the employer learns about the disability and its impact. We talk about how expectations get reframed, how a paper trail of “issues” gets built, and why courts and juries react when disability-related symptoms are treated like pure misconduct or disengagement.We also get practical about exposure. Federal damages caps can be misunderstood, especially because economic losses are often not capped and state law claims may expand recovery. Finally, we connect the dots on why performance is not evaluated in a vacuum: opportunity, support, and structure can shape outcomes, and under McDonnell Douglas pretext analysis, that context can decide whether “performance” is the real reason or just the stated one.Subscribe for more clear employment law insights, share this with a manager or HR partner, and leave a review with your biggest question about performance management and disability accommodations. If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, X and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts and Spotify. Leaving a review will help other employees find the Employee Survival Guide.  For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer:  For educational use only, not intended to be legal advice. 

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about. And a lot more. Hey, it's Mark, and welcome back to another episode. Today we're discussing performance or disability, the emerging pattern highlighted in a recent case that office filed. There is a pattern that shows up in these cases more often than employers want to admit, and it rarely gets framed correctly.

An employee is performing well, then something changes at work. Management, expectations, structure, or simply how the employee is treated. Around that same time, the employee begins experiencing medical issues, often neurological or stress-related. The employer becomes aware of it. Then the focus shifts to performance. In many cases, the stress of this increased scrutiny and disparate treatment by the employer only serves as a further exacerbating factor of the employee's condition. I recently filed a case called Walsh v. Fitch Solutions, Inc. in the Southern District of New York,

2025 reflects how this case plays out in practice. The broader point is not unique to that case. The Ecom Employment Opportunity Commission continues to see a steady volume of disability discrimination claims, many of which involve conditions that develop or worsen in response to workplace pressures. According to the complaint against Fitch Solutions, Ms. Walsh had an established record of success, including responsibility for major client relationships, before the events at issue. The allegations described a shift following changes in a management and internal structure that affected her role, access to opportunities, and to day-to-day working environment. Around that same time, she alleges that she experienced disparate treatment related to severe migraines that were directly impacting or impacted by the same. by the working environment.

The complaint alleges Ms. Walsh communicated about the migraines, which can be a disability, and the company was put on notice of both the condition and its impact. According to the complaint, what followed, as alleged, is familiar, increased scrutiny, reframed expectations, and a growing record of, quote-unquote, performance issues. That sequence is where these cases are decided. The issue is not whether an employer medically caused a condition. The American's Disabilities Act does not require that. The issue is what the employer does once it knows the condition exists and understands how it is affecting the employee.

When the same facts can be described as both a performance problem and the manifestation of a medical condition, the distinction does matter. Courts and juries have reacted strongly when that distinction is ignored. In an EEOC case versus Walmart stores in 2021, a jury returned a verdict for $125 million, which was later reduced under statutory Caps. after finding that the changes to a long-term employee's working conditions led to the termination tied to a known disability. The number itself is not the point. The reaction is. What the employer viewed as a routine management decision was viewed very differently once the facts were considered together. That dynamic is not difficult to understand.

Once a fact finder concludes that an employer relied on a conduct shaped by a known condition, the framing of the case shifts quickly. It stops being about performance and starts being about how the employer handled information it already had. The allegations in Walsh reflect a sequence that is frequently at issue in these cases. In a more developed form, the complaint allegations describe not only the existence of a medical condition, but a condition of severe migraines in this case that allegedly became a focal point for disparate treatment and ultimately termination. Those are not abstract harms. They are the types of impacts that can care. carry through an employee's ability to remain in their role and continue earning at the same level over time. That distinction matters when considering exposure. While federal law imposes

caps on certain categories of damages, those limits generally apply to non-economic harms and do not extend to economic losses. They do not necessarily apply where parallel state law claims are asserted. But the same set of facts reflects not only distress, but an ongoing impact on employee's ability to function and work, as the allegations in Walsh suggests, the potential recovery is not confined to the categories typically associated with those caps. In that context, a statutory cap, is not the defining feature of the case. The allegations in Walsh also raised a related issue that shows up frequently, but is often overlooked. The role of opportunity, support, and an internal structure. Performance is not evaluated in a vacuum. It is a function of the

environment the employer controls. When an employee alleges that change, in the work environment affected performance, courts may examine whether the employer considered that connection. But the time termination decisions are made, the narrative is usually locked in. The focus is on output, responsiveness, or engagement. The medical condition may still be there, and it may still be affecting the employee, but it is no longer part of the employer's explanation. It has been separated out, at least on paper. However, that separation does not always hold. Under the famous McDonnell Douglas Corp v. Green, courts look at whether the stated reason for a decision is the real one. When performance concerns arise in direct connection with a known condition, especially one that has not been meaningfully addressed,

that analysis becomes more difficult for the employer. In some cases, the two are so closely linked that they cannot be untangled in any way that favors the defense. That is where the exposure changes. Courts and juries may show increasingly sensitivity to situations where an employer knows about a condition and proceeds to evaluate performance as it does not exist. Once a fact final concludes the employer relies on conduct shaped by that condition, the framing of the case shifts quickly, and while the federal law imposes caps on certain categories of damages, those caps do not apply to economic losses and parallel state law claims may allow for broader recovery. What starts as a routine performance case can become something else entirely when the allegations are viewed through that lens. None of this turns on a single decision point. These cases are about sequences, what changed, what was known, and how the employer responded.

The conditions involved are often not static. They develop over time, sometimes in response to the workplace itself. That's what makes the analysis less about identifying one moment and more about understanding the progress. of facts. For employers, the more difficult cases are not the obvious ones. They are the cases where the line between performance and disability is not clearly drawn until it is being drawn by a jury. These issues are rarely present, or these issues rarely present themselves cleanly at the same time they are happening. By the time the decision is formally explained, the underlying reason has often already been set. The outcome of these cases is often determined by details that

are not immediately obvious, but may become central once the case decision is challenged. If you like more information about these cases, please contact our office, and thank you again for letting me be of service. If you like the Employees Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep up the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question,

I'll actually review it and post it on there. You can send it to m-C-R-U-I at c-a-pc-claw.com. That's capclaw.com.