[COLUMN] Terminating an employee based on perceived disability may constitute discrimination  

Q: I AM a marketing executive with decades of experience. I am very good at my job and was  promoted almost 2 years ago to a director position at my company. About a year ago, I was diagnosed  with a congenital heart condition that required I get a pacemaker. I told my boss about it to let her know  that I needed some time off for the surgery.  

When I came back from leave, my boss asked that we meet to discuss my “reintegration” to the  team. During our discussion, she asked multiple questions about what she and my co-workers would need  to do in case I had an adverse health event at work. She also expressed concern that the demands of my  director position might be bad for my heart. I explained to her that I felt fine, and that, more importantly,  my doctor ensured me I could return to work like normal, with no restrictions.  

But she insisted we try to lighten my workload so that I’m not, in her words, “too stressed.” Some  of my assignments were shifted around to others. I continued to do well, so I told her I was ready to take  on more responsibilities. She said ok and that she was glad to hear it, but nothing changed.  

Later, my boss told me that I am being terminated because they were eliminating my position.  But I heard from some people in my department that my boss is actually looking to promote a younger  executive in our department, who has pretty much the same background and skill set that I have, to a  similar position.  

I’m still good at my job, but I feel like everything changed for me at the company after I got my  pacemaker. When I mentioned that to a friendly colleague, he admitted that our boss actually said  something to him about my being a “potential liability” due to my past medical issue. He wasn’t sure  what she meant, but he was afraid to ask. Do you think I might have been discriminated against?  

A: There are indications that you may have been discriminated against because  of what your employer perceived to be a disability. Under the California Fair  Employment and Housing Act (“FEHA”) it is unlawful to discharge a person from  employment, or otherwise discriminate against the person in the terms, conditions, or  privileges of employment, because of a disability.

To state a case of unlawful disability discrimination, an employee must have proof  that: (1) she suffered from a disability, or was regarded as suffering from a disability; (2)  she could perform the essential duties of the job with or without reasonable accommodation; and (3) she was subjected to an adverse employment action because of  the actual or perceived disability.

Based on your recitation of facts, it would appear that you are not actually disabled  within the meaning of FEHA, which defines disability as any physical or mental condition  that limits one or more major life activities. Rather, it appears that your employer simply  regarded or perceived you to be suffering from a disability when she expressed her belief  that your health condition was incompatible with your director position and that you were  a potential liability to her department.

Based on your account, it would appear that you were able to successfully perform  the essential duties of your job, both before the pacemaker surgery and subsequent to it.  You have obviously been subjected to an adverse employment action, i.e., a termination.  If proven true, your assertion that your boss is actually promoting someone else to replace  you, rather than eliminating your position, may be evidence that your firing was a result of  your perceived disability.

If you prevail at trial, you could entitled to recover lost wages and benefits, as well  as compensation for any emotional distress you may have suffered as a result of your  firing. Note also that FEHA authorizes recovery of attorneys’ fees and litigation costs,  which allows employees with meritorious claims to have access to counsel, who may agree  to represent you on a contingency (no recovery, no fee) basis.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential  and at no cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than  25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and  consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal,  consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for  Outstanding Filipino Overseas.]

(Advertising Supplement)


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