In Sandell v Taylor-Lustig, Inc., Robert Sandell was hired as vice president of sales in 2004. Six months into his employment, he suffered a stroke. Upon returning to work, Sandell walked with a cane and his speech was noticeably slower. His performance evaluations for 2004 and 2005 rated Sandell as meeting or exceeding requirements in all areas. His 2006 review, however, rated him as needing to improve in several areas while meeting standard in others. In 2007, a few days after Sandell's 60th birthday, his employer terminated his employment for unsatisfactory performance, including poor sales. Sandell sued for disability and age discrimination.

The lower court dismissed the suit on the grounds that Sandell was not disabled and there was insufficient evidence of discrimination to warrant a trial. Reversing the summary judgment, the California court of appeal held that evidence of Sandell's need for a cane in order to walk and his impaired speech was "clearly sufficient" to establish that Sandell was disabled.

The court also ruled that there was evidence of discrimination sufficient to require a trial. For one, management's criticisms of his performance were mostly subjective and thus allowed an inference that the criticisms were motivated by discriminatory animus. The court further cited Sandell's testimony that his manager told him that if he "did not make a full recovery" then the company had the right to fire or demote him. On another occasion, the manager allegedly asked Sandell when he was "going to drop the cane" and "drop the dramatization." The court opined that these alleged comments were "close to direct evidence" of disability discrimination. Other management comments supported the age discrimination claim, including several incidents where an executive said he would "rather fire old people and replace them with newer, younger people because it was cheaper."

This case powerfully reinforces two key points of HR practice: Good documentation of performance problems should focus as much as possible on objective, measurable criteria, and even the best documentation will be undercut by management comments of a discriminatory nature.