Q:        I was diagnosed with early stage cancer a few weeks ago. I can still do my job but I will need about 5 hours off from work every week for 3 months for medical treatments. I asked my manager for intermittent leave. When he refused, I emailed him information from the Labor Commissioner's office regarding my leave rights. My manager got mad and refused to talk to me. Yesterday, I was fired for poor performance but it wasn't explained what I did wrong. I worked for this company for 10 years and my evaluation has always been “above expectations.” Is my firing legal?              

 A:        Your firing may be illegal, even though the employer said it was due to poor performance. The firing seems suspicious given the close proximity between the firing, and the time that you asked for intermittent leave. Here, it is worth investigating to determine if your former manager was motivated by a discriminatory reason (your medical condition) that is being covered up with a purported business reason instead.

An employer may not terminate an employee for discriminatory or retaliatory reasons. Doing so may give rise to a wrongful termination claim. In order to skirt around the law, the employer may claim that it had a legitimate, non-discriminatory reason for firing the employee (such as poor performance or customer complaints). It is then up to the employee to prove that the employer's stated reason for the firing was a “pretext.” To prove pretext, the employee may show that the stated reason:

• is false,
• did not cause the firing, or
• is not enough to cause a firing (i.e., people are not usually fired for this reason)

(Instead of firing the employee, once a disability or medical condition is known by the employer, it has a duty to provide reasonable accommodation to employees to enable them to work despite their disability.  Depending on the employee's specific restrictions and the employer's circumstances, reasonable accommodations may include providing medical leave, offering part-time or modified work schedules, reassigning to a vacant position or job restructuring, or acquiring or modifying equipment or devices to allow the employee to do their job.)

Aside from discrimination, an employer may also be retaliating against an employee who tried to assert the right to take a medical leave. In order to prevail on a retaliation claim, an employee must prove that:

1) The employee engaged in protected activity, such as reporting a violation, testifying as a witness, or asserting a legal right. 

2) The employer knew that the employee engaged in such protected activity.

3) The employee suffered an adverse employment action, such a demotion or termination

4) The employee's protected activity caused the employer to take adverse action.  Unlawful retaliation may be inferred from timing, especially if the firing occurred soon after the employer learned about the protected activity.

It is true that employers generally have the power to terminate employees at will. However, employers must not be motivated by a discriminatory or retaliatory reason for doing so. In this instance, the termination becomes unlawful, and may subject the employer to liability for damages. Employees who prove they were retaliated and wrongfully terminated may recover loss of earnings, emotional distress, and in certain cases, attorneys' fees and costs, and punitive damages.