Aside from the most egregious sexual harassment cases, there may be no claim that irks the U.S. Equal Employment Opportunity Commission (EEOC), and ultimately the average jury, more than disability discrimination cases brought by employees undergoing treatment for cancer. Employees with cancer who are terminated without good cause are seen as suffering the triple indignity of dealing with a potentially life-threatening illness, what often is a miserable course of treatment for their illness, and the termination of their employment because of their misfortune.
The EEOC recently demonstrated its intolerance for an employer’s failure to accommodate cancer-stricken employees by bringing suit in U.S. District Court in Chicago against a casino that denied a slot technician employee’s request for time off for surgery as part of his course of treatment for sarcoma. Following a round of chemotherapy that temporarily put him out of work, the employee requested an extension on his previously approved leave of absence to undergo surgery. The casino denied his request and later terminated him when he did not return to work after the expiration of his approved leave. The EEOC is seeking an injunction, back pay, compensatory and punitive damages, and reinstatement of the terminated employee to his position of slot technician.
Put the outcome of such a case in the hands of average Americans and you have the makings of a $4.5 million verdict. In Axel v. Fields Motorcars of Florida, Inc., a Mercedes dealer terminated a 71-year-old used car and wholesale manager, who had recently been diagnosed with kidney cancer, which had metasticized to his lungs. The employee elected an experimental treatment that came with side effects described as “tremendous” stomach pain, sores in his mouth, and sores on his feet. The employee’s supervisor expressed frustration because the employee was “not getting real doctor’s treatment” but “other holistic or crazy things.”
The dealership terminated the employee in 2014, alleging that it had recently discovered that ten years earlier, in 2004, the employee had improperly obtained an auto auction access card for his son who occasionally helped the employee transport used cars to the local auto auction. (The son later was hired by the dealership and remained employed through the date of his father’s termination.) The misrepresentation on which the termination allegedly was based was discovered ten years after it occurred. That was the only justification for the decision.
The jury did not buy the proffered justification for the decision, found that the employee was fired because of his disability and awarded the employee $680,000 in lost wages and benefits, $600,000 for emotional distress, and $3.22 million dollars in punitive damages. Ouch.
Avisement: Sensitivity, foresight, and most importantly, communication, is required when responding to accommodation requests from employees treating for cancer.