You’re Damned if You Fire an Employee Who Gives You the Finger

Posted: April 30, 2012 in Disability Liability, Discrimination, Worker's Comp. Insurance

I must confess that the title to this post is in very poor taste. You see, this is not about an employee who made an obscene gesture; rather, it is about an employee who injured his finger working for his employer, and ultimately had it amputated. The employer rewarded the nine-fingered employee with a pink slip. The employer would not allow the employee back when he was able to return to work a few months later.

The employee sued at the Massachusetts Commission Against Discrimination, and won $50,000 in emotional distress damages, plus substantial interest (I believe that the interest more than doubled the award). The employer, represented by competent counsel, may have paid that much or more in legal fees. Because of procedural and other reasons, the employee did not recover lost wages at the MCAD; he had earlier won $67,500 in lost wages in a related Superior Court case.

Total damages chargeable to the employer are estimated to be around $170,000, plus substantial legal fees. The case is reported as MCAD v. O.K. Baker Supply Co., Lawyers Weekly No. 22-016-12. If you have trouble finding the decision, let me know and I’ll e-mail it to you. The employer was also ordered to cease and desist discriminating from any future discrimination based on disability and to conduct a training session for all of its employees.

There are two important lessons from this case. One, is that an injured worker eligible for worker’s compensation will be considered disabled for purposes of the state anti-discrimination law. This means that you must accommodate such employee, and cannot discriminate against him.

The second point is that a leave of absence can be a reasonable accommodation. How long is reasonable? I don’t know. No one knows, until the MCAD, EEOC, judge or jury tells you if you were acting reasonably or not. That may not sound fair, but that is the law. There are certain parameters that you can consider, such as the impact on your business of not filling the position with someone else. Also, employees generally are not entitled to take unlimited leave for an indefinite period of time. At some point, they must give you a time frame for return.

But each case turns on its own facts and issues, and this is a very difficult area of the law. If you have an injured or otherwise disabled employee (leave could be reasonable for any disabled employee), even one that has exceeded 12 weeks of FMLA leave, do not fire them until you fully vet the issue with competent legal counsel. Call me at 617.338.7000 if you need help with this.

And for the record, an employee who flips you the bird can likely be terminated for the action. That is, unless it’s an involuntary reflex caused by a nerve disorder, an excuse I tried to use in high school to no avail.

By Adam P. Whitney

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