We have had some people coming to our office in White Plains, New York who have had some pretty severe diagnosis and mainly cancer and these clients have to take time off for medical testing and medical treatment. At Gould & Berg in New York we have had situations where after the client tells the employer that he or she is going to have to go for treatments, the employee is given a negative performance evaluation and is concerned about consequences including termination and the question arises can I sue for discrimination? The answer to that question, depends on many factors and what we try to do rather than talking about a lawsuit initially is to work with the client and if the client wants to keep the job to work with the employer. Perhaps, educate the employer that certain accommodations are appropriate when a certain person is diagnosed with cancer. For example, taking some time out for testing and medical appointments. Again, in order to acquire the employer to give accommodation the employee has to be able to perform the essential functions over his or her job and so what we try to encourage other than a lawsuit is to work with the employer to come to an accommodation that’s reasonable under the circumstances. I might add that merely and I use that word advisedly, merely being the recipient of a negative performance evaluation even in cases where you haven’t received such a thing before is not necessarily a basis upon which to commence a lawsuit.
This informational blog post was provided by Jane Gould, an experienced New York Employment Attorney.