Ok. On the policy, I understand that you don't have it right now. That is something you'll have to look at closely.
Without a contract of employment, you are "at will
" which means that legally the employer can terminate or suspend your employment at any time, with or without cause. So, nothing externally (by that, I mean statutes or regulations imposing something on the employer) requires that an employer give warnings, written notices or any other pre-action process before suspending or terminating an employee.
So, any sort of pre-action process would have to be established by the company itself, through their own company policies. If the employer breaches their own policy, they can technically be sued for breach of that contract. Now, you have to weigh the cost/benefit of suing over a two day suspension rather than a termination
. Suing your employer for breach of contract
is not a protected activity, meaning that your employer can be forced to pay you for those two days, but then they can fire you. Rather than suing for a suspension, I would work internally through HR if the company policy makes it mandatory to give you some sort of warning before suspension.
Now, all that changes if you can allege that the basis for this treatment is your disability. You don't need proof, exactly, of this person's discriminatory basis. All you need is a reasonable suggestion. If this person is hardest on you, and no one else, that's a good fact. If other people were given warnings before suspensions, but not you, that's a great fact. It helps to reasonably establish a claim called "disparate treatment" or simply differing treatment. When you are treated differently and the only discernible difference between you and others is your disability, it raises the presumption that it is your disability that is causing the differing treatment.
You can certainly, in your complaint to HR, state that you believe that your disability is the basis for these actions and you do not feel that you were treated properly according to the company policy (assuming that the policy turns out to be helpful to you). Even if the policy isn't helpful to you, you can still make this allegation to HR. You don't have to know that you are right or even be right to make that claim and put the employer on their heels as they must take any such suggestion seriously. Unlike suing them in court for breach of contract for the two day suspension (if the policy is helpful to you), claiming discrimination
, even if it doesn't pan out, is a legally protected activity. Any action taken against you following that claim will take on the appearance of retaliation
for your having said it, which would be illegal....retaliation is not permitted under the ADA
If the employer isn't cooperative or doesn't take the claim seriously, you then contact the EEOC
to file a complaint with them. That would give you a third party looking in on their actions. That is also legally protected.
So, I know you stated the disability as an afterthought, but it is the strongest legal issue you have going forward.