Fear in termination: the sympathetic plaintiff

Currently in the news, there is a story about an employee who was terminated by her (small-business) employer. This employee had numerous incidences of personal tragedy in her family. Evidently, In the last year, she lost one of her parents, another relative passed away and then her son developed kidney failure. She found out that she was a viable donor and completed the surgery to donate one of her kidneys to her son. During her recuperative period, her employer hired someone to replace her. It appears that she found out about her termination when she attempted to return to work.

Her story is being presented on the national media. Her former employer is being vilified, while she is being honored as the “Mother of the Year.”  The media has reported that she has contacted an attorney and that a wrongful discharge lawsuit is being considered. The legal environment is, as usual, murky. This company has less than 50 employees and, therefore, not held accountable to comply with the Family Medical Leave Act. They have exceeded the number of people to be accountable to the Americans with Disabilities Act.  Whether or not she has a legal case, it’s too soon to tell. Whether or not the company has created a problem is quite apparent. So the question remains— what should an employer do with a sympathetic plaintiff?

Some people do seem to walk around with a dark rain cloud hovering immediately over their heads. These people rarely make the best employees.  We have all seen people who just can’t seem to catch a break in this life, and we have known people like this in the workplace. They tend to pull on our “heartstrings,” and often we marvel at their ability to cope and tolerate the misfortune that seems to follow them endlessly.  Most of us would like to help if we could.

There is another dimension that factors into the case or situation like this: the dimension is that the government hates it when employers take action against employees because of health related matters. The state’s Human Rights Commissions and the Department of Labor can always be counted upon to weigh in on the side of the employee in any of these matters. In most cases, the truth is that the situation is not the fault of the employer, and it may not even be the fault of the employee. In some cases, lifestyle choices can be at the heart of the problem. People choose to smoke or drink or make other high-risk choices that tend to have a deleterious effect on employability. In other instances, life- style plays no role in the malady. People don’t choose to get kidney stones, brain tumors or Parkinson’s disease. Things like that just happen, and employees have to deal with them as do employers.

In this economy, it is obvious that employees need to be delivering a hundred percent of the time, and there is little tolerance for circumstances that have a detrimental effect on productivity. Employers want to have peak performance and productivity at work, and they need to create an environment that fosters it. Clearly, there must be some allowance made for temporary setbacks for employees because we want to live in a just and fair place. Let’s remember that our values are on display with every decision that we make. This employee demonstrated her values by donating a kidney to her ill son. The employer could have addressed both matters: the need for productivity and the need to support an employee. They did not really have to choose one or the other—they could have chosen both. They did choose, obviously badly, and now they’re paying for it on the national PR stage.

If this company had been my client, I would’ve never recommended that they terminate this employee. I would’ve recommended that they celebrated this employee’s decision. They could have turned this situation into one of altruism, instead of a lawsuit.

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