Dialysis and ADA

I came across this article about a kidney patient in Florida who is  suing his former employer for terminating him off shortly after he announced his kidney problems.  They claimed it was a reduction in force but he points out that the “layoff” took place four months prior to his termination and that only involved four other people.  He is filing in U.S. District Court under the Americans with Disabilities Act (ADA).

It’s a popular trend today for companies to use the “reduction in Force” or “layoff” to rid themselves of employees with medical issues.  It’s in their interest because it reduces their insurance liability and costs.  The company I worked for spent about $1.5 Million per year for health insurance for 250 employees.  That’s about $6000 per person per year.  If it went up 10 percent that’s another $150,000 per year.  Keeping the number of claims down means they won’t have to pay as much and the insurance companies communicate this very clearly in their reports to their customers.  There’s a lot of pressure to keep down claims and to get rid of unhealthy employees.

In my case and as I pointed out in previous posts, the “layoff” in which I was terminated involved mostly second shift, hourly employees but also a few people with significant medical problems.  If the employer calls it a “layoff”, they believe they can get away with it and they generally do.

I did my homework and performed a careful data analysis of the people involved and showed the EEOC that there was a skunk in the works.  Not only was my termination discrimination under the ADA but also under the Age Discrimination in Employment Act (ADEA) because I was the oldest in my department and the only one terminated.  I was able to show that many of those also terminated were over the age of 40 and this fact stood out in my data analysis. Further, those who were salaried employees and over 40 years old,  had significant medical problems.  Finally, I showed that I was eligible for long-term disability insurance and was denied that benefit.  I showed a clear pattern of discrimination by the employer. With this evidence, the EEOC picked up the case and sent a letter to my employer asking them to justify my termination.  They’ll have a tough time doing that. They have 30 days to respond.  The next step will be mediation to settle the case.  Barring that, the EEOC will file suit in Federal court.

Reading between the lines in the case of the Florida man, I suspect he didn’t go through the EEOC.  If he had, the case would be mediated first.  That’s usually the first step after the EEOC gets involved.  They like to resolve the dispute through mediation.  If they can’t, they will file suit in Federal court.  This case was filed in Federal court by a private attorney so I figure they didn’t come to a pre-trial agreement with the employer.  It’s in the interest of the company to resolve this by mediation.  It will cost them a considerable amount to litigate this case.  The burden of proof is on the employer. They  must prove that they didn’t discriminate against this person and that’s a tough task.  Simply saying it was a “layoff” won’t work in most cases.  However, anything can happen in court.  If there’s a jury, they may not be sympathetic.  If it’s heard by a judge, he could decide against the victim.  But, the result can also be several million dollars to the wrongfully terminated employee.  In the case of the Florida man, he lost his insurance and his place on the transplant list so he has certainly suffered damages that would warrant a significant amount of money.

A couple years ago  a young fellow I met in at the dialysis center, a vet of Iraq, was working for a funeral home when he came down with ESRD and had to go on dialysis.  He kept having trouble with his access so he went in for surgery.  When he returned to work, they told him he was fired for missing work.  I told him to contact the EEOC but I don’t think he did.  If anyone had a better case of ADA discrimination, I don’t know. Missing work for surgery and getting fired?! But it’s very intimidating and he was really wiped out from what he had to go through in dialysis.  He was having a rough time of it.

That’s why the ADA exists.  As disabled people, we already have to play on a tilted playing field; things are stacked against us.  We need some protections but they are worthless if you don’t take advantage of them and many don’t.  It’s another uphill battle that must be waged and it’s not easy when your immediate source of income is effected.  Just being on unemployment is enough of a hit.  Disability from Social Security takes four months to get processed.  Now, you have to jump through the hoops of EEOC.  My case took six months before I got an appointment to meet with a intake case worker.

You can go through a private attorney but that means coming up with several thousand dollars for a retainer and agreeing to a large percentage of the settlement.  And finding a private attorney to take an ADA case is difficult.  It’s not a lucrative business representing victims as it is representing employers so there are fewer of them.  The EEOC doesn’t cost anything so I suggest you go there first. It’s not easy but if you have your ducks in a row, you can successfully plead your case and get them to take it on.  Just make sure you have all and any documentation.  Leave nothing to chance.  Another suggestion is that you write out all that happened while the events are still fresh in your mind.  Refer to that often as you make your case to the EEOC.  (I plan to write more about this.)

I wrote previously about my success with getting the EEOC to take my case but I wanted to bring this up again as discrimination against kidney and dialysis patients seems to be a common issue.  It happens all too often.  I also wrote about this in  “Dialysis and Your Job” and “CKD and Your Job“.  (If I knew then what I know now!)  I hope you don’t have to learn the hard way as I did, so I share this experience.

DevonTexas © 2012

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About DevonTexas

I am a person with ESRD (End Stage Renal Disease) which means my kidneys don't work. Forty or so years ago that would have been a death sentence but today there is Dialysis which means I can be hooked up to a machine that will clean my blood as the kidneys should. Three days a week, I go to a center and have too very large needles stuck in my arm to remove and replace my blood as it passes through a process where it's cleaned and the fluid is removed, a process taking a little over four hours each time. I want to advance knowledge about dialysis so that other patients can learn from my experience and mistakes. We shouldn't have to reinvent the wheel, eh? There is so much to be learned and experienced about our predicament. There are vast resources available to support us and enrich our lives but many patients don't know about them. There are also many issues that we have to deal with whether we want to or not. So I blog about them. All comments are confidential until I approve them. If you don't want your comment public, let me know and I will respect that. So, feel free to leave a comment. Enjoy.
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