We are blogging on Mark Oberti’s paper on the “5 Things Employers And Employees Need To Know About Cancer In The Workplace”
The first thing to know is that cases involving employees with cancer who are fired are inherently high risk, and can lead to large verdicts.
Almost every juror has experienced the loss of a loved one from cancer. Thus, hearing about an employee with cancer who was fired is likely to immediately emotionally resonate with them. Given that reality, unless the employer has a very compelling – and objectively provable – reason for firing the employee, the employer could face a large adverse verdict.
For example, in 2010 a jury ordered Michaels Stores, Inc. to pay Kara Jorud, a former store manager, $8.1 million for firing her while she was undergoing chemotherapy after having being diagnosed with breast cancer. The jury found that Michaels violated Jorud’s rights under the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”).
Just one week after undergoing surgeries, including a double mastectomy, Michaels’ district manager, Skip Sands, allegedly began calling Jorud daily, urging her to return to work—even though she was projected to need nine to 10 weeks of recovery time. Allegedly fearing she would lose her job, Jorud returned to work much sooner than the three months she was entitled to under the FMLA. She allegedly forfeited paid time off and cut her pre-approved vacation time. Notwithstanding, Sands allegedly continued to harass her, questioning her need for more time off. When Jorud told Sands she needed a Friday off for more chemotherapy treatment, he allegedly told her she needed to be back to work on the following Monday. Finally, in frustration, Jorud sent an email to human resources: “I am losing faith in the company that says, ‘Michaels Cares!’ It is disillusioning to me to think that a company that caters largely to women, with a large quantity of women employees, is trying so hard to get rid of a female manager because she was unfortunate to get a women’s disease!” Michaels allegedly did nothing. Ultimately, Jorud was fired a day before her next scheduled chemotherapy session.
One of Michaels’ initial allegations was that Jorud had stolen merchandise from the store. This backfired, however, when Jorud produced her sales receipt. Thereafter, Michaels claimed it fired Jorud for violating a company policy which prohibits employees from purchasing older and discontinued merchandise about to be thrown away. This too backfired, however, when Plaintiff produced several employees who testified that violating these policies were not fire-worthy, as they had done the same thing and were not terminated.
This case demonstrates that jurors are highly sympathetic to discrimination and retaliation claims by cancer-stricken employees. While managers and HR staff should be trained on employee rights under the FMLA and ADA, just knowing the rules is not enough when it comes to dealing with employees with cancer. In such cases, the rules must be implemented in a sensible, sensitive, morally upstanding, and respectful manner.