“Does this sound like a legal case of ‘perceived disability’ discrimination?”

Question: Dear Alan, First, let me say how much I enjoy your site. I’ve learned a LOT but still wonder about my particular case. As you’ve mentioned, it’s better to ask and be certain than wonder for a lifetime.

I’ve been working for a non-profit organization for about eight months, and was recently transferred to a new boss. During my second week working for this new boss I developed a health issue that required my being out of work.  I was out for three days, was in contact with my boss everyday, and continued working from home. A month later, the medical issue re-appeared, and I was out sick for an entire week. Again, I was in touch with the office every day and continued to work from home.

I was fired upon my return. The explanation? My boss “needed someone at their desk” and “you are not at your desk.” Indeed, I had missed nine days in six weeks. It was apparent to me, from an offhand comment made upon my initial return, that he was concerned that my problem would become chronic. I was asked to leave immediately and offered two weeks severance.

I don’t know if this is a case of wrongful termination, but anyone who I’ve told the details to says “It can’t be legal for them to do that.” One person said that it sounds like a case of “perceived disability.” So, I ask you, Mr. Sklover, is it legal? Many thanks for your insights and assistance!   

         Kathleen
         New York, New York

Answer: Dear Kathleen, I’m pleased to hear you read our blog regularly, and that makes me particularly pleased to help a “loyal member of our SkloverWorkingWisdom Blog family.”

The facts are where we start. Whenever I interview a client or consultation client, I ask them to tell me as many facts as possible. Often, that lasts an entire hour, or more. When blog visitors, like yourself write in, I am limited in the facts I have to review. That said, I think I have enough of the facts here. 

The law protects not only disabled people, but people who appear to be disabled. Under federal, New York State and New York City law, employers are forbidden from firing people because they are disabled, or appear to be  disabled, and are required to provide them with “reasonable accommodations” to enable them to continue in their jobs. From the comments and actions of your employer, they seem to be concerned that you were disabled, or were about to become disabled, and they seem to have offered, and then reneged on, a reasonable accommodation-working from home. For these reasons, you seem to have a reasonable case of disability discrimination based on what the law calls “perceived disability.”

I suggest you consider writing a letter to the company’s CEO to make him or her know what happened to you, and that you have a legal claim of violation of your federal, state and city disability rights, and that you would be willing to give up that claim for much better severance. 

We offer a Model Letter to file a Complaint about Discrimination. If interested [click here].

Your employer may also have violated the federal Family and Medical Leave Act (“FMLA”). Federal law provides that employees in need of time off to attend to medical problems are entitled to take that time off – without pay – but with a guarantee of their job back when they return. And they can’t be fired or otherwise retaliated against for taking the time off. Under your circumstances, I believe your employer had an obligation to let you know of this right, and apparently failed to do so. 

On this basis, too, I suggest you consider writing a letter to the company’s CEO (or inserting into the letter you are already writing about disability) to make him or her know what happened to you, and that you also have a legal FMLA claim, and that you would be willing to give up that FMLA claim for much better severance. 

We offer a Model Letter to file a Complaint about FMLA violation. If you’re interested [click here].

Just don’t be afraid to “stand up.” In life and the law, there are no guarantees of success. But you should always stand up for your rights. I believe you have a good case of violations of law, and thus a good chance of getting better severance, if you do stand up.

Kathleen, one favor I ask of you: no matter what you do, don’t be afraid. And, no matter what you do, let us know how it goes. Hope this helps, really, really do.

Thanks for writing in. Please tell your friends about us.  

          Best, Al Sklover   

Repairing the World –
One Empowered and Productive Employee at a Time ™   

© 2010 Alan L. Sklover, All Rights Reserved.