I was fired while undergoing medical treatment: Is it legal?

doctor explaining diagnosis to his female patient.

(MoneyWatch) Dear Evil HR Lady,
Barely four months shy of my five year anniversary, I was terminated. The reason listed on my paperwork was "performance." Although I had been working on a formal performance improvement plan, the termination was still somewhat unexpected due (mainly) to the fact that I was (and would still be if I had any insurance) undergoing treatment for a medical disability. My doctor had sent several letters to my manager regarding the difficulty I was experiencing with my medications, and my FMLA paperwork had been submitted and approved several months prior. Three months before my termination, I had, both verbally and via email, notified my supervisor, manager, and HR representative of my diagnosis and had requested (a) transfer to a different position if they felt that I could no longer effectively perform my job duties. The EEOC is currently investigating my case.

My concern is this: How do I explain the situation to a potential employer? My attempts to secure new employment have all failed, thus far, and I can't help but think that this whole situation has played a major role in my continued unemployment. Reason for leaving last employer is something every interviewer has asked, and I just don't know how to answer. "I got fired for poor performance, but it's okay because I've filed a complaint with the EEOC about it" doesn't strike me as the ideal response.

You are right. It's not the ideal response. And filing a complaint with the EEOC doesn't mean you were wronged, it means that you've filed a complaint with the EEOC. It does not mean that what happened WAS illegal, merely that the EEOC feels it's worth looking into.

Telling a potential employer that you are in the midst of an EEOC case not only doesn't help justify your termination, it makes you a less desirable employee. Why? Because if you filed a suit against one employer, employers assume you have the EEOC on speed dial and if anybody looks at you the wrong way, you'll file against them. Whether or not this is true is irrelevant. Whether or not you eventually win your case is irrelevant. The fact that you filed is a red flag.

Companies want to keep their costs low and even winning a case is hugely expensive. (I once spent literally two years working on a discrimination charge that the government brought against the company I worked for. We spent millions of dollars in defense and eventually won on all charges, but there was no refund for winning.)

So, you definitely do not want to bring up the EEOC thing. You also want to steer clear of the blame game. You have medical problems, but you also were on a performance improvement plan. You claim that the termination was "unexpected' because of the medical problems. Let me be clear: It is illegal to fire someone because they are on FMLA or are subject to the Americans with Disabilities Act. It is not illegal to fire someone for performance in those situations. Just being subject to these laws doesn't protect your job if you are not performing up to expectations.

From here, I cannot determine whether or not your company fired you strictly for performance reasons, or if they illegally punished you for your medical conditions. The EEOC will sort that out. But, you need to let that part go when you are job hunting. You need to address what your performance issues were and how you are going to fix them.

In response to "Why did you leave your last job?" you begin with "I learned that I have real difficulty doing [task x] and as that was a critical part of the job, they let me go." Then you continue with an explanation of why that will not be a problem any more.

-- As a result of that experience I took an online course in [skill related to task x] so that I don't have that problem again.

-- Fortunately, [task x] is not a big part of this job, which makes me very excited about this opportunity. My real strength lies in [task y], which is what this job focuses on. I'm very excited to get back in a situation where I can really help the company out.

-- I was very sad to leave because I loved my coworkers and my boss, but I agree that [task x] was critical for that particular role. So, right now I'm focusing on finding a job where I can use my skills in [task y] and [task z] because that is where I can make the biggest impact. This particular job seems to be a perfect match for my skill set because...

If it wasn't a particular task or responsibility that you struggled with, but simply your medical condition didn't allow you to perform up to standards, you can try this approach.

-- I was suffering from some health problems that prevented me from giving all of my attention to my job and because my role was critical to the health of the company, they had to let me go. Fortunately, [my health is much better now]/[with this small accommodation]/[because this particular job doesn't require lifting] that will not not be an issue in this job.

The key thing is keeping things positive and emphasizing how your previous problems will not play a role in your future career.

Additionally, keep in mind that job hunting is really hard for everybody right now. People with perfect resumes and spotless pasts are having trouble landing a new position. You need to focus on finding jobs that really do require your strengths and not whatever weaknesses you have. Even if your termination was 100 percent illegal, you still had performance issues and until you figure out how to get over those, you won't be successful.

When job hunting, the best bets are honesty and being positive. Otherwise, you're out of the running.

Have a workplace dilemma? Send your question to EvilHRLady@gmail.com.