Is it discrimination (wrongful termination)? (Sally has MS)

Sally worked for a small insurance sales office. She was one of only three employees. She was recently diagnosed with multiple sclerosis and needed three weeks off for initial treatment. Her employer terminated her, stating, “we really need someone healthy to do this job.” Is this disability discrimination? Should Sally hire a discrimination lawyer?

First, remember that every situation we address on this website is intended to be in a non-union context with no “contract” in place. This is the situation for the vast majority of employees in California who work for private companies. They are “at will” employees.

Both federal and California law prohibit certain employers from discriminating against employees based on their disabilities. Under federal law, only employers with fifteen or more employees are covered. Under California law, only employers with five or more employees are covered. Here, Sally was one of only three employees. Thus, she is not protected by the disability discrimination laws.

But what about the FMLA or the California Family Rights Act (“CFRA”)? These laws only protect employees who work for employers with fifty or more employees and only in specific circumstances. Here, Sally could not take advantage of these laws because her employer was so small, so there was no need to look at other requirements.

Unfair? Sure seems like it. Unlawful? No.