Is Firing a Woman with Breast Cancer Employment Discrimination?
By Gerri Elder
Employment law can be a tricky section of law to navigate. The burden of proving discrimination is often difficult, because in addition to the documentation required, you must usually find other employees willing to testify, and for the sake of their own jobs, many are not willing to do so.
Additionally, private and public companies have different regulations governing how termination of employees must occur, and so what applies to wrongful termination in the case of a government-affiliated company may not apply in the private sector.
Several recent news stories and related lawsuits have brought up this contentious issue once again. Two women in two different states have encountered employment termination because of one of the most tragic illnesses a woman can experience: breast cancer.
Angie Arttus, of Sparta, Wisconsin, was diagnosed with breast cancer on August 2 of this year. She notified her supervisor at Duratech Industries in La Crosse, Wisconsin, where she works as a shipping clerk. Four days later, the human resources manager at the company had a meeting with Arttus, in which Arttus claims that the manager told her that the company no longer wanted her working for them.
As Arttus related in an interview with a local news station, "They just said it was in my best interest and it would look better on my resume for future job applications if I had a quit rather than a termination on my record."
When Arttus refused to quit, the company fired her for what it said was "excessive absenteeism." According to Arttus' account, she was absent for two days in her three months of employment at Duratech. But in both instances, her supervisor knew about her absence ahead of time, and Arttus made up the time afterward. Also, she had just had her employee review few days earlier, and had received top marks for her work to that point.
According to Duratech's stated policy on employee termination, warnings for problematic behavior are issued verbally, then in a written statement, then in a second and final written statement followed by termination. In Arttus' case, none of the company's own policy was followed.
A similar situation faces a police dispatcher from Manassas, Virginia named Katie Tremul. Tremul was diagnosed with breast cancer in May 2006. She went on long-term disability as part of her health insurance with the city beginning last August.
However, she received a formal letter from the county in July of this year stating she would be terminated at the end of the month, thus ending her health plan and medical insurance.
The reason? While Tremul was on Family Medical Leave, she was protected by a government statute that prevented her termination for leave of up to 12 weeks in a one year period. When she, however, switched to the long-term disability relief offered by her employer's insurance plan, the City of Manassas no longer had a federal obligation to maintain her job.
According to the Family and Medical Leave Act, the federal government gives employees rights to the same job or an equivalent position after using their time off specifically for Family Medical Leave, not after long-term sick leave provided by the employer.
Despite this fact, Katie Tremul says that the letter came as a shock to her because she was in communication with the Human Resources Department of the city throughout her medical leave, and despite many conversations with people there, no one informed her that termination was a possibility.
Facing her final surgery out of eight total surgeries, Tremul was optimistic that she would be able to return to work after recovering from this procedure. After switching to her husband's health plan to cover upcoming medical bills, Tremul is now considering retirement.
Though Katie Tremul has sought legal advice and learned that she has no case against the city, Angie Arttus will be pursuing compensation in a court of law for her situation. Arttus has filed a complaint with the Equal Employment Opportunity Commission (EEOC), who has taken up her case and will determine whether or not Arttus' breast cancer can be considered a "disability."
If this is the case, Arttus is protected under the Americans with Disabilities Act, and Duratech would either have to offer her the job back or provide her with a settlement. Like Katie Tremul, Angie Arttus is not covered by the Family and Medical Leave Act, in her case because she was not employed with the company for at least a year, the required minimum for the act to apply. Sure that tensions arising from her claim would no longer allow her to work at Duratech peacefully, Arttus is hoping to receive a settlement.
Many companies across the United States are pursuing options to save on health care, and employing individuals with expensive, chronic conditions is a tremendous drain to the pool of insurance funds from which companies draw to pay medical expenses for their employees. Companies now are ever more wary of hiring individuals who smoke, are obese or have other chronic illnesses for that reason.
Some companies, as a recent news story in Alabama recounts, are considering charging obese employees more for their health insurance. Currently, many companies offer incentives to employees who lose weight, or maintain proper weight and health in order to try to lower insurance premium costs. However, as companies have done over the past few decades with tobacco users, the incentive plan is projected to work better if employees are given financial motivation in the form of insurance premium surcharges.
Precedent suggests that the threat of termination works. Experts point to examples in the upper Midwest for support. Michigan firm Weyco Inc. told its employees in 2003 to stop smoking or face termination. The City of Port Huron, Michigan no longer hires tobacco users.
However, the more pressure companies put on employees to live healthier lifestyles, the more cautious they must be in making sure that they do not cross the line into discrimination or wrongful termination. Even peer pressure that encourages losing weight could potentially create the kind of atmosphere in which those who cannot help their obesity or genetically-related diseases are discriminated against or even wrongfully terminated.
And this could also bleed into other areas, in which unthinking supervisors or employees make the mistake of confusing personal health upkeep and suffering from a potentially terminal illness.
Both Angie Arttus and Katie Tremul know how difficult losing a job can be on top of that life-changing experience.