“Cancer” is a word that can strike fear in even the bravest of people. Everyone dreads hearing a response from the doctor that starts, “I am detecting a mass and I think we should check it out.” Undergoing cancer treatment, or even just testing for potential cancer, is a serious medical event that can impact every part of your life, both professional and personal. Among all the other fears with which you’ll inevitably have to deal, losing your job due to discrimination shouldn’t be one of them. If that happens to you, be sure to reach out to an experienced New Jersey disability discrimination attorney to discuss your legal options.
W.E., a truck driver from Pennsylvania, was one of those people who had to face those challenges. In late 2015, he underwent surgery to remove a nodule in his left lung (and so that doctors could test the nodule for cancer.) That procedure (and post-operative recovery) forced the trucker to take a two-month leave.
After just a month and a half back at work, the trucker suffered a severe respiratory infection at the end of January 2016, missing several days of work. On Feb. 1, W.E.’s second day back, the employer fired him, so he sued in federal court for disability discrimination in violation of the Americans with Disabilities Act (ADA).
In a disability discrimination case where the employer fired the worker, there often is one factual dispute at the crux of the matter. You, as the worker, will argue that your employer fired you because of your disability or perceived disability. Your employer will likely argue that it fired you due to some perfectly defensible, legitimate and non-discriminatory reason.
How do you defeat that kind of argument by your employer?
There are several ways. One very useful way to strengthen your position (and show that the real reason for your termination was discrimination) is to present evidence that undermines the employer’s credibility. Sometimes, this may come from an employer that has not engaged in proper HR documentation. For example, take an employer that claimed it fired a worker for multiple disciplinary infractions but had no contemporaneous records of having “written up” that worker for rules violations. That evidence of a lack of “write-ups” may go a long way in damaging the credibility of the employer’s argument about the employee being a disciplinary problem.
Another very effective way to diminish your employer’s credibility is to highlight that your employer has trouble “keeping its story straight.” In W.E.’s case, the employer first said that it fired the trucker due to “performance issues,” then changed the reason to W.E.’s alleged failure to call out sick for one the days he missed with the respiratory infection. After that, the employer changed its story yet again… this time going with “behavioral issues” as the reason. Evidence of that degree of shifting explanations can often be very beneficial to you as the discriminated worker by making the employer’s position generally less believable.
How to establish that you are ‘disabled’ under the ADA
It is important to keep in mind that, in a federal disability discrimination lawsuit, a mountain of proof of your employer’s duplicity won’t matter if you don’t prove that you are a disabled person within the meaning of the ADA. You potentially can succeed by proving that you had a qualifying impairment or, alternately, that your employer regarded you as having such an impairment.
W.E.’s case was one of those “regarded as” cases and the Third Circuit Court of Appeals stated that he was entitled to go forward with his case. The law says that workers cannot pursue that kind of case if the impairment was “transitory and minor.” In other words, if you can prove either that your problem lasted for more than six months or that it was something more substantial than just a minor impairment, then you can go forward with your case.
There are many pieces that go into building a discrimination case that can succeed in court. To make sure you have the strongest case possible, be sure you have the sort of experienced legal counsel you need. The skilled New Jersey disability discrimination attorneys at Phillips & Associates are here to help. Our attorneys offer many years of knowledgeable and experience in successfully litigating both state and federal discrimination cases. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.