good case against big company

i was out for 6 months with a work related shoulder problem(ended up having surgery) when i came back to work my old sales job was gone and they had me unloading trailers. i was on light duty with weight restrictions. after complaing to my boss i was fired. 3 days after my termination i recieved a certified letter saying that i voluntered my employment upon reciept of the letter. now the company is protesting my unemployment benifits saying that they fired me because of misconduct. i curently have a comp case pending, and a unemployment hearing tomarrow. is thier grounds for discrimination

1 answer  |  asked Jan 8, 2002 5:10 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Terminated for Weight Restrictions

Your situation actually raises a number of interesting legal issues, but to answer your question: I doubt you have a discrimination case.

In theory, you might have a handicap discrimination case, but you have two significant problems there. The first is that your disability is probably NOT considered to be a disability under federal law. New York State Law defines disability more broadly, so that maybe you fall under the protection of the state law, the Human Rights Act.

However, and here is your second problem, you can't do the unloading job, because of your disability. Because of that, you are not qualified for the unloading job, and can be terminated from it for that reason. Handicap discrimination cases always have to involve a job which the person making the came can perform, with or without "reasonable accommodation." Reasonable accommodation basically means with some type of limited help.

We would probably have to measure against the unloading job and not the sales job. Because you were out so long, the employer had no duty to keep your sales job open for you. Under the Family Medical Leave Act, the employer only had to keep it open for a maximum of 12 weeks. In giving you the unloading job, they were doing you a favor.

Perhaps you might be able to set up a claim that the employer put you in the unloading job just to set you up for termination. They had the sales job available but decided not to return your there. If this is the case, then the key issue is why the employer did that. One possible reason might be that you made a Workers' Compensation claim.

In that case, you might have a workers' compnesation discrimination case. But those cases are hard to prove and win because you have to prove a very narrow ground: that the actions the employer took were motivated by your filing a workers' compensation claim. Workers' compensation discrimination cses are filed with the Workers' Compensation Board, not the State Division of Human Rights or the EEOC. Be very careful about that.

The Workers' Compensation motivation is not necessarily the only possible motivation for setting you up for failure. Conceivably, the motiviation might have been your disability, but to succeed on that you would probably need to prove that the employer had a pattern of setting up disabiled employees for failure. That sounds like it would be difficult to do.

posted by David M. Lira  |  Jan 9, 2002 12:49 PM [EST]

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