A New Jersey woman is suing her former employer after she says they fired her a day after she revealed that she had been diagnosed with breast cancer.
Carmela Flynn, 49, worked for 10 years as a legal assistant at the law firm November & Nunnink and alleges that the company also denied her unemployment benefits because she wouldn’t sign an agreement that she wouldn’t sue the firm, according to court documents obtained by NJ.com.
“The day after certain employees and the defendants were made aware that the plaintiff was stricken with breast cancer, the defendants wrongfully, illegally, and without just cause terminated” Flynn, the lawsuit says.
According to the lawsuit, Flynn was hired as a part-time receptionist in 2005 and was promoted to legal assistant in 2006. Flynn says that her work record was spotless and that she had no problems with her employers until November 2014, when she was diagnosed with multiple sclerosis.
“It is at this point in time that the defendants clearly, unequivocally, and with malicious intent commenced a wholesale campaign of abuse, retaliation, and certain surreptitious adverse employment actions,” she says in the suit. Flynn was diagnosed with cancer in February 2016.
The lawsuit also says Flynn was told she was being fired “because of the contents and dissemination of an innocuous email.” Instead, the lawsuit says, “the truism is that [Flynn] was diagnosed with cancer and the defendants had no tolerance, compassion, empathy.”
Flynn also says she was told through her lawyer that if she didn’t sue her former firm, the business “would not object to her receiving unemployment compensation benefits.” The lawsuit claims that November & Nunnink violated the New Jersey Law Against Discrimination and accuses the firm of intentional infliction of emotional distress, unreasonable conduct, and gross negligence. Flynn wants a jury trial and damages.
Firing someone because of an illness is a violation of the Americans with Disabilities Act (ADA) as well as many state laws that prohibit employment discrimination against the disabled, employment law expert Michael C. Harper, a professor of law at the Boston University School of Law, tells Yahoo Beauty. “This is clearly illegal,” he says.
The ADA prohibits discrimination and ensures equal opportunity for people with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation, per the U.S. Department of Justice’s Civil Rights division. (Breast cancer would qualify as a disability, Harper says.)
Employees who have serious illnesses “cannot be fired or have any other adverse actions taken against them, like discipline or demotion, because of their illness,” Kimberly Smith-Brown, director and spokeswoman of the communications staff at the Equal Employment Opportunity Commission, tells Yahoo Beauty. “Also, they are protected from retaliation for asserting their rights under the ADA (such as by filing a charge of discrimination or asking for a reasonable accommodation), and they cannot be harassed based on their disability.”
These employees are also entitled to “reasonable accommodations” if they ask for them and need them, and if the accommodation would not cause an undue hardship (meaning significant difficulty or expense) for their employer, Smith-Brown says. “Accommodations for employees with cancer may include, but are not limited to, leave, telework, schedule changes, and reassignment,” she says.
Paula Brantner, senior adviser for Workplace Fairness, tells Yahoo Beauty that employers who fire an employee who is ill may also run the risk of violating the Family and Medical Leave Act. “It’s a really risky thing to do,” she says, adding that some employers will try to do it anyway.
However, Harper notes that employees have to prove that they were terminated because of their disability. “To get a court order for reinstatement and damages, [Flynn] would have to prove that this is the reason she was fired,” he says. “That might not be easy, but the law is clear.”
Brantner says proximity between employers learning about an illness and the termination is key. If it happens close together, it’s suspicious. “Anyone would look at that situation and say that those two acts were related,” she says. However, if the time between the employer learning of an employee’s diagnosis and the time of the firing are more spread out, an employee could still potentially prove the two events were related if job reviews had been positive and everything was fine at work until the employee’s diagnosis was revealed, Brantner says.
If you find yourself in a similar situation, Harper recommends contacting an employment discrimination lawyer and explaining the reason why you think you were fired. A lawyer can advise you from there.
Laura A. Nunnink, Esq., a partner of the firm, denied the charges to Yahoo Beauty. “November & Nunnink rely upon the findings of the New Jersey Administrative Agency, which concluded they were not aware of Ms. Flynn’s cancer diagnosis on the day of separation,” she said in a statement. “Ms. Nunnink and Ms. November will vigorously defend these false allegations.”