My Sister-in-Law had a hip replacement and was out on disability. She returned to work for a short period of time and had to have more surgery to correct problems with the original surgery. Her original surgery was February of 2010, she returned to work in July, and had to have more surgery for the same problem in October of 2010. She was scheduled to go back to work April of 2012, and was just notified that "her position had been eliminated". Another problem is that she is 64. Does she have any recourse either with the disability issue or the age issue? She has received favorable job reviews.
Yes, it is quite possible that she has a claim for both disability discrimination and age discrimination (both are terminations against public policy) if these were the real reasons for her termination, rather than because the position was eliminated. However, it would of course be inappropriate to disclose her private details on this public form. I strongly suggest she consult with a labor/employment attorney to determine what rights and remedies she might have.
If 's Q and A service can provide any overall service to the public, it would be, in my view, clear and reliable information to employees about the distinctions between discrimination and unlawful discrimination, and between the rights of employers and those of employees. There is a vast amount of myth and misinformation out there in the working world, and based on what we see in questions, it is common for employees to get themselves into unnecessary job difficulties because they mistakenly believed that they were protected or shielded by law when they are not.
Discrimination is not per se unlawful. Only certain kinds of discrimination are unlawful. Employees can be terminated at the employer's will or whim on the basis of lawful discrimination.
Unlawful discrimination can be redressed by legal action only when it is the basis of the employer's action -- not when it is simply present or satisfied as one of the tapestry of facts. The distinction is critical: an employee can be lawfully terminated while on disability; an employee cannot be lawfully terminated because of the disability (except in some very limited factual circumstances). Other bases of discrimination are subject to the same general "but for" principles: an older (over 40) worker can be lawfully terminated, but it is unlawful to terminate a worker because the employee is over 40. Ditto race, gender, national origin, etc.
It will almost always be true that the "because of" that is so critical will be a matter of disputed fact. That is, the employer will say one thing and the employee will contend something else. It is almost always the case that the employee has the burden to prove the truth of the employee's contentions by admissible evidence. Of course, the employer's documents and records will be important evidence, but they are not necessarily dispositive if they are not persuasive for any number of reasons.
Applying these principles to your sister-in-law: unless she was terminated because of her age, because of her disability, or because of those two factors in combination, it is unlikely that she has legal recourse. If her position was truly eliminated as a matter of economic necessity, the analysis can get quite complicated and technical with respect to why her position was the one (?) eliminated: because of her age? because of her disability? By all means she should consult with an experienced employment attorney to determine whether she has a provable claim for unlawful discrimination. In that consultation she will need to be able to communicate to the attorney all possible information about the elimination of her position, the make-up of the workforce (present and before the elimination of her position) and any info she can find out about hiring or reorganization in the company following the elimination of her position. These are difficult factual analyses resting on very fine and careful distinctions and challenging even to trained professionals. Any potential case with the prospect of significant damages needs to be evaluated by a skilled and experienced attorney.
She generally has FMLA rights if the employer has enought employees. Unfortunately, that will only be 90 days or so of job guarantee at best. Going on 18 months of disability makes it more likely that her elimination/replacement was business necessity than discrimination. Or, to put a slightly sharper point on it...if they can get by without her for 18 months, it may be possible that her position is just unnecessary in the reevaluation. She is entitled to State Disability for about a year, if she has not exhausted that. A good Long Term Disability policy could pay her until she is eligible for Social Security. She may also get Unemployment almost until she becomes eligible for Social Security if she can look but cannot find work.
Unfortunately, her age or disability has to be the reason for her termination, not just a coincident fact. Based upon the timeline given, I think she is fortunate that they kept her job open for over 2 years.
Hello the. I am sorry about what she is going through. It must be tough during these economic times. I nee to know more facts before I can tell you wether she has a claim for either age and/ or disability discrimination. I can tell that based now the length of her leave, she had exhausted her FMLA (Family Medical Leave Act) time. In California, an employee is entitled to time for a physical and mental disability as mean of reasonable accommodation so long as it is not an indefinite leave. So even if her position was not available upon her turn, her leave could have been protected. The questions is wether the company could have accommodated her by giving her an altnative job if her job was no longer available. You should have her call an employment law attorney. Good luck. Nick.
Attorneys Chen, McCall, Corson and Ebrahimian are all correct. To the extent any of their responses seem inconsistent, it is because the focus is on a different legal issue. This should show you that employment rights are fact-specific and only a detailed analysis will provide some certainty. That kind of detail is far beyond what can be accomplished here on .
For a general overview of disability rights, please look at my guide on the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) : http://www.attorneyqna.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment and my guide on the differences between the ADA and California’s disability rights law, the California Family Rights Act, Government Code section 12945.2 (CFRA): http://www.attorneyqna.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.
For a general overview of family leave (although I agree the length of the leave is far beyond legal protection under the family leave laws), see my related guide: Please look at my guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.attorneyqna.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.
You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
