Employee Fired for Having Breast Cancer
Employers can terminate workers for many reasons, but firing a woman with breast cancer while she’s in the hospital is barbaric. At least one federal judge agrees. Chief U.S. District Judge David R. Herndonon on August 1 denied a Coldwell Banker realtor’s attempt to dismiss the lawsuit Jamie Engler filed in response to her employer’s “extreme and outrageous” actions.
According to Engler’s complaint, she told her employer, realtor Donald W. Brown, who does business as Brown Realtors in Edwardsville, Ill., that she had breast cancer on the same day she was diagnosed in February 2011. During the ensuing treatment, which included surgeries, chemo and radiation, Brown refused to allow her to take the sick leave she’d accrued or to use her work phone to deal with medical necessities. In June, he called her while she was in the hospital and fired her.
If That’s Not Outrageous, What Is?
Engler sued Brown in October 2011 for not only violating the Americans with Disabilities Act (ADA) and the Illinois Human Rights Act, but also for intentional infliction of emotional distress (IIED), pointing to his alleged outrageous behavior. Brown tried to dismiss her claims, but Judge Herndon denied that attempt, ruling that all three claims could stand, which means that Engler will get her day in court.
To be successful on the IIED claim, Engler will first have to show that Brown actually did the awful things she claims. Then she must show that his behavior was “extreme and outrageous,” and that he meant to and actually did cause her severe emotional distress. “The success of this type of claim depends on the jury feeling outraged over the employer’s conduct,” notes Indianapolis plaintiff’s lawyer Kathleen M. Sweeney. “This outrage means the jury [finds] the employer’s conduct to be so awful that no one should ever experience it.”
“If she can prove the facts she has alleged, Ms. Engler has a very strong likelihood of prevailing at trial,” predicts Sweeney, who represents plaintiffs in employment law cases and is a former prosecutor.
An Avalanche of Potential Damages
Sweeney says IIED claims are common in employment lawsuits similar to Engler’s. “Workers commonly bring this action because the outrageous conduct becomes admissible against the company which the jury might not hear otherwise,” she explains. “Another benefit of this claim is that there are not any limits on damages.”
In fact, Brown is facing a potential avalanche of damages owed, given the egregiousness of his alleged behavior. Engler can certainly recover lost pay, benefits, repayment of medical bills, and attorney’s fees, but while the ADA compensatory damages will likely be limited to $50,000 (based on the size of the company), “if she wins the distress claim the jury can award her any amount of money it believes will compensate her for humiliation, pain and suffering,” says Sweeney.
What’s a Worker to Do?
While it’s unlikely that many people will suffer both breast cancer and the loss of their job, along with being discriminated against and treated so horribly, lots of workers face job loss when they fall ill. What can you do if Engler’s case rings a bell?
“The first place to start is with the employee handbook,” Sweeney recommends. “You must follow the procedure. Many handbooks require you to tell your boss or report your boss to the human resources department.” Your employer may also ask you to have a medical exam by a doctor of its choosing. “You should agree to this request,” she says. And if the unfair treatment is causing you stress, report the stress to your own doctor as well so that there is a record.