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Tiffany's in the gun over medical discrimination

8 March 2017

World famous jewellery brand Tiffany & Co is being sued for allegedly discriminating against an employee on medical grounds.

Tiffany's began in New York in 1837 and now has stores in major cities all over the world.

Lewis Comfort Tiffany, the company's first official design director, was most famous for his stained glass windows and Tiffany lamps.

The brand now focuses on high-end jewellery aimed at women, with recent marketing campaigns featuring Angelina Jolie and Lady Gaga.

However, the company currently faces litigation brought against them by a woman. Lisa O'Rourke claims she was discriminated against by Tiffany's because of her genetic condition.

O'Rourke was the director of strategic sourcing for Tiffany's at its manufacturing facility in Rhode Island.

Her maternal grandmother and aunt both died of cancer, and her mother was diagnosed with breast cancer.

In 2013 O'Rourke tested positive for a gene mutation which put her at a higher risk of developing cancer. She decided to have pre-emptive surgery to avoid developing cancer.

In January and February 2014 O'Rourke took leave to have her breasts and ovaries removed, returning to work in May. She told Tiffany's there would be more surgeries to follow.

In July, she requested more leave for a third surgery. Tiffany's initially asked her to reschedule as she had not been at work enough to qualify for medical leave under the US legislation. However, Tiffany's did actually grant leave for that third surgery and held her job.

In October, O'Rourke notified Tiffany's that she required leave for a fourth surgery. A month later she was told her job was being disestablished, but she was offered another job with less compensation and responsibility. She declined this job.

O'Rourke claims she lost her job because of her genetic condition. The United States courts will decide her claim.

O'Rourke was clearly in a horrible position, living with a greater risk of cancer because of her genetics. Tiffany's gave her considerable time off work for surgery to protect her from cancer – the better part of 2014, until her job disappeared.

But is it fair for her to ask her employer to keep her job open for such a long time without her doing the work?

Was it a fair compromise in the circumstances for Tiffany's to offer her a lesser job that she could more easily do?

In New Zealand cases where employees face similar medical difficulties, there are two important legal issues.

In the first place, the Human Rights Act prohibits discrimination on the grounds of physical illness. Here it would be illegal for Tiffany's to discriminate against O'Rourke by eliminating her job because she was ill.

However, it would only be illegal discrimination if her job was eliminated because of her illness, and not because the role was surplus to the company's requirements.

In its defence, Tiffany's could argue that O'Rourke does not yet have an illness but only the potential for one, and therefore the Human Rights legislation does not apply.

On the other hand, an employer is allowed to dismiss a person on the grounds of medical incapacity.

Employers do not have to keep a job open indefinitely for employees who are unable to carry out their duties because of long term illness or incapacity. However, before deciding to dismiss, the employer must communicate with the employee and allow them to respond to the employer's concerns.

How long the job must be held open is based on factors such as the nature of the employee's position, the length of previous service and likely length of future service, the nature of the illness and prospects of recovery, and the nature of the employer's business and its practical requirements.

Ending employment for medical incapacity should be handled sensitively.

Obviously any sick leave should first be used up. A thorough inquiry based on qualified medical opinion must then show it to be reasonably clear that the person will not be able to return to work in the immediate future.

In 2016 a dissimilar case to the one against Tiffany's took place in New Zealand. Ms Crozier was employed by Idea Services.

Crozier was dismissed because of a chronic respiratory condition that her employer decided made her medically incapable of carrying out her duties as a care worker.

She succeeded in a case against her employer for unjustified dismissal. That is because when measuring her ability to do her job, the employer added five requirements to be met that were specific to her condition, not the job itself.

They were not requirements that a fair and reasonable employer would put in place and hence were discriminatory.

As the Tiffany's case develops it will be enlightening to see whether the highly regarded company acted in a fair way toward its employee.

Tiffany's opened a store in Auckland in November last year, linking Kiwis to this world-wide company that is now on our own shores. Readers should watch this space as interesting insights into just how fair Tiffany & Co. was as an employer will no doubt emerge through the Lisa O’Rourke case

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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