By Christopher S. Andre and Scott K. Dauscher In a press released issued today, the California Department of Fair Employment and Housing touts an administrative award of $846,300 against an employer for allegedly failing to accommodate an employee's medical condition and for allegedly terminating the employee "relying on [an] insufficient travel pretext." The DFEH press release states as follows: ELK GROVE, CA – The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee because he had cancer. Headquartered in Lumberton, North Carolina, Acme Electric is a division of Actuant Corporation, a Wisconsin diversified industrial corporation that operates in more than 30 countries. "This historic administrative victory underscores the Department's commitment to vindicating the rights of Californians victimized by workplace discrimination," said DFEH Director Phyllis Cheng. Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company's largest territory from February 2004 to March 2008. He developed kidney cancer in 2006 and prostate cancer in 2007. Mr. Wideman's cancers required two surgeries and numerous cancer-related outpatient appointments. The company immediately granted his two requests for time off for surgery and recuperative leave. However, Mr. Wideman requested further accommodation for the travel limitation his cancers caused from June 2006 through April 2007. Acme Electric refused to grant or even acknowledge these accommodation requests. Instead, in December 2007, Mr. Wideman's supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel. On February 28, 2008, ignoring Mr. Wideman's need for accommodation the preceding year and failing to take into account his dramatically improved job performance, Acme Electric fired Mr. Wideman, relying on the insufficient travel pretext. "California's Fair Employment and Housing Act (FEHA) provides that persons with disabilities, such as cancer, must be reasonably accommodated, so that they can continue to work productively," added Director Cheng. After a three-day hearing, the State's Fair Employment and Housing Commission found Acme Electrical violated the FEHA by failing to accomodate Mr. Wideman's known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating against Mr. Wideman because of his disability, and failing to take all reasonable steps necessary to prevent discrimination from occurring. To compensate Mr. Wideman for his losses, the Commission awarded him $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for the emotional distress he suffered. In addition, the Commission ordered Acme t pay $25,000 to the State's General Fund as an administrative fine. Acme must further comply with posting, policy changes, and training requirements ordered by the Commission. In our experience, cases alleging an employer's failure to accommodate an employee's disability or medical condition are on the rise both administratively (i.e., DFEH actions like the one discussed above.) and by way of private lawsuits filed by current or former employees. Employers should use caution when terminating or otherwise disciplining an employee with a known disability or medical condition to make certain that the termination or other discipline does not run afoul of applicable California law, which is often quite favorable to employees. Employees with disabilities or medical conditions can lawfully be disciplined or even terminated, but employers should proceed with caution.
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