Employment Discrimination

Some survivors experience employment discrimination when they return to work or apply for a new job after diagnosis. Knowing about your rights and responsibilities in the workplace can help you with discrimination problems.

Employment Discrimination: Detailed Information

This information is meant to be a general introduction to this topic. The purpose is to provide a starting point for you to become more informed about important matters that may be affecting your life as a survivor and to provide ideas about steps you can take to learn more. This information is not intended nor should it be interpreted as providing professional medical, legal and financial advice. You should consult a trained professional for more information. Please read the Suggestions and Additional Resources documents for questions to ask and for more resources

Employment discrimination occurs when an employer makes decisions about an employee’s ability to work based on certain characteristics (such as race, age, sex, physical ability or religion)–without looking at whether the employee can actually perform the duties of the job. Employment discrimination can be very discouraging on top of the health, emotional, and financial challenges that may come with cancer and treatment. Survivors should be aware of employment laws and their rights that provide protection to employees.

If cancer, treatment, or the aftereffects of cancer do not affect your ability to perform your job satisfactorily, you are not required to tell your employer about the cancer diagnosis.

Why would a cancer survivor be at risk for employment discrimination?

For most survivors, the concern about employment discrimination is generally focused around his or her medical condition. Discrimination may be based on myths, fears and stereotypes about what people with cancer can or cannot do. In terms of employment, the employer should not make decisions that are based on speculation or a guess and not facts.

Some common reasons survivors experience employment discrimination include:

  • Employers sometimes have incorrect assumptions about what cancer survivors can or cannot do.
  • Survivors sometimes need to leave town for treatment.
  • Employers are often uncertain about the time requirements needed for cancer treatment or follow-up appointments.
  • Employers sometimes fear their insurance costs will go up.
  • Survivors may need to change how they perform their job.
  • Employers sometimes incorrectly view cancer as a death sentence and are worried that survivors will not be able to continue to work or return to work.

 

Employment discrimination includes an employer’s failure to provide “reasonable accommodation” to enable a qualified employee with cancer to perform the duties of his or her job. An accommodation is a change that the employer makes to help the employee perform his or her job during and after cancer treatment. Examples of accommodations might include a change in job duties, a modified work schedule, or a change in the number of hours the employee must work. Reasonable accommodations might be temporary or permanent, depending on the situation.

Which federal laws protect cancer survivors?

Two main federal laws protect cancer survivors from employment discrimination: the Americans with Disabilities Act and the Family and Medical Leave Act. Both are briefly described below.

  • Americans with Disabilities ActThe goal of the ADA is to ensure that people with disabilities have an equal opportunity for employment. The ADA applies to all phases of the employment process including hiring, benefits, promotions, layoffs, and raises.

    In some cases, cancer, treatment, or the late effects of treatment may entitle a survivor to protection under the Americans with Disabilities Act (ADA). If so, the employer cannot discriminate against the employee because of the disease or treatment as long as the employee is able to perform essential functions of the job.

    If your ability to perform your job is affected by cancer or treatment, the ADA may provide protections through reasonable accommodation that enable you to continue to work in the job. For example, sometimes post-treatment survivors have long-term effects from cancer treatment such as fatigue, chronic pain or a cognitive problem. However, if a person is qualified to do his or her job, the employer may need to provide a reasonable accommodation.

  • Who is covered under the ADA?The ADA applies to employers with 15 or more employees and to employees of state and local governments. State employees cannot sue for monetary damages against their state employer, but can still sue their state to get their job back. State employees may also have additional protection under their own state laws.
  • Who is protected under the ADA?The ADA applies to a person who is a “qualified individual with a disability.” Post-treatment and long-term survivors may fall into the category of “having a history of an impairment.”

    A person can show they are disabled by the following:

    • Having a physical or mental impairment that substantially limits a major life function, such as concentrating, sleeping, eating, walking, talking, breathing, caring for oneself; or
    • Having a history of an impairment; or
    • Being regarded as having an impairment

    The disability must be looked at in its corrected condition. For example, how a person is doing at the time he or she thinks the discrimination occurred and what the effects of the cancer treatment were at that time.

    If medications effectively limit the symptoms, the survivor may not be protected. This means that you may not be protected if your cancer treatment symptoms or your post-treatment symptoms are controlled by medications. This is decided on a case-by-case basis.

    A survivor must also be a “qualified individual.” This legal term means that the person can perform the essential functions of the job with or without reasonable accommodation. The employer must provide reasonable accommodation to a qualified individual so long as it does not create an undue hardship to the employer.

    Some examples of reasonable accommodations are:

    • Reassignment to a vacant position
    • Light duty
    • Flexible hours
    • A possible period of leave time

    Generally, an employee must request a reasonable accommodation. All requests for accommodation are confidential. The employer’s human resource department often supervises the accommodations.

  • Should the employer be told about the cancer diagnosis if a reasonable accommodation is not needed?You are not required to tell your employer you have or had cancer. This is a personal choice each person must make. Keep in mind that if you think you are being discriminated against at work because of cancer, you are not entitled to protection under the law unless you have informed your employer about your medical condition.

    In some cases, the employer and people at work may prove to be a good system of support through the cancer experience. However, not every employee wants to tell his or her employer. Some may be concerned that they could be treated differently or unfairly if they tell their employer that they have or had cancer. They may choose not to disclose their medical condition if there is no need to make any reasonable accommodations at work.

  • Family and Medical Leave ActAnother federal law that may help cancer survivors and their caregivers is the Family and Medical Leave Act (FMLA). Under this law, a person can take up to 12 weeks of unpaid medical leave in a year to care for a seriously ill spouse, parent or child or for an employee’s serious medical condition. The FMLA applies to employers with 50 or more employees within a 75-mile radius.

    A person must have worked at the company for at least one year and have worked a minimum of 1,250 hours in that year to take leave under the FMLA. The leave is unpaid. However, the employee’s job is protected. This means that the employee can return to the same or an equivalent position. The employee’s benefits also stay in place. If the employer is paying for someone’s health insurance, the employer will continue to pay while a person is on FMLA leave time.

    FMLA leave time can be taken all at once or as a person needs to take time off. Also, cancer patients may be able to take time off for 12 weeks under the FMLA and then possibly take an extended medical leave as a reasonable accommodation under the ADA.

 

Do state laws protect cancer survivors’ employment rights?

The state where you live may have similar or more protective laws that protect people with cancer. These laws may apply to employers with fewer employees than under the ADA. Find out the specific FMLA law for the state in which you reside. This law may be different in each state.

Can an employer fire someone who has cancer?

Employers do not have to hold a job indefinitely. The length of time that an employer must hold a job generally depends on whether the time off creates an “undue hardship” for the employer. The employer may also have a medical leave policy that limits the amount of time someone can take off.

Employers are able to fire people for many reasons. For example, a company can “downsize” and many employees may lose their jobs. Or, an employee can be fired for not doing a satisfactory job or not having the necessary skills. However, an employer cannot fire people with disabilities just because they have disabilities.

Workplace discrimination due to a medical condition is a concern. The goal is to achieve appropriate accommodation when necessary. This involves working with the employer. Knowing these laws is beneficial. If your company has an employee or personnel handbook, look carefully at the medical leave policy.

Talking with the employer about their obligations and your expectations is also important. Sometimes these discussions can resolve problems early and avoid involving additional parties or agencies.

If survivors think they are experiencing employment discrimination, they can educate themselves about the laws that provide protection. They may be able to work with their employer to get a reasonable accommodation at work and be able to keep their job. The ADA wants employers and employees to work together on workplace accommodations.

However, sometimes dealing with employment discrimination is difficult. Then, employees must decide what action to take. Sometimes employees want to try to work with their employer to “fix” the situation. Some may seek legal action. Others may want to go to another job and not use energy “fighting” with their employer. Each survivor must decide what is best for him or her. For more information, see Suggestions.

Information on your legal rights can often be found with the Equal Employment Opportunity Commission or the local office that enforces employment discrimination laws in your state. However, litigation is difficult and can be expensive. A survivor may not want a legal battle on top of the challenges of cancer.

What should survivors know about job searches after cancer?

Many people wonder what they have to tell a prospective employer when they are looking for a new job. The following generally applies to starting a new job:

  • Your resume should focus so that it focuses on your skills and work experience and not periods of unemployment.
  • When explaining periods of unemployment, focus on your current health. If possible, explain that you are now in good health (some are actually healthier due to new ways of living). Speak with the assurance that you expect to remain that way.
  • Do not ask about health insurance while you are interviewing for a job. Wait until you have been offered the job.
  • Prospective employees do not need to disclose their medical condition unless they need a reasonable accommodation.
  • An employer cannot ask about your medical condition, but can ask if the employee can perform the essential functions of the job with or without a reasonable accommodation.
  • If an employee has a visible disability, the employer can ask prospective employees to demonstrate their ability to do the job.
  • Tell the truth. Do not lie on a job or insurance application. You could later be at risk of losing your job or your health insurance if you did not tell the truth.
  • Carefully consider what to tell the employer and co-workers about your cancer diagnosis. You do not have to volunteer that you have nor had cancer unless it directly affects your ability to perform the job.
  • Remain confident in your abilities and apply for jobs that match your abilities.
  • Educate yourself about your legal rights as a cancer survivor.

 

Employers can ask employees to take medical examinations, but they must require it for all employees entering that same position and must make a conditional offer based on the employee passing the medical examination. The employer cannot take back the job offer unless the medical exam shows the person cannot perform the essential functions of the job with or without a reasonable accommodation.

If an employee has a conditional offer and has to take a medical exam, prospective employees must answer the questions carefully and accurately. You could lose your job by misrepresenting information.

This document was produced in collaboration with:

Barbara Ullman Schwerin, Esq.
Director, Cancer Legal Resource Center, a joint program of the Western Law Center for Disability Rights and Loyola Law School

Works Cited

Hoffman, Barbara, ed. National Coalition for Cancer Survivorship. A Cancer Survivor’s Almanac: Charting Your Journey, 3d Edition. Hoboken: John Wiley and Sons, 2004.

 

Employment Discrimination: Suggestions

The suggestions that follow are based on the information presented in the Detailed Information document. They are meant to help you take what you learn and apply the information to your own needs. This information is not intended nor should it be interpreted as providing professional medical, legal and financial advice. You should consult a trained professional for more information. Please read the Additional Resources document for links to more resources.

  • Educate yourself about the employment laws in your state.Contact the Equal Employment Opportunity Commission (EEOC), which enforces the federal Americans with Disabilities Act, at (800) 669-4000. An EEOC representative should be able to provide information about the ADA and also about the state agency that enforces the employment discrimination laws in your state.
  • Contact the Department of Labor for information about the Family and Medical Leave Act.Your state may have a law that provides additional protection.
  • If you experience employment discrimination, contact the following agencies for information and help:
    • The Equal Employment Opportunity Commission is the federal agency that enforces the Americans with Disabilities Act. Contact them at 1-800-669-4000 or visit www.eeoc.gov.
    • The Job Accommodation Network is a government agency that provides practical information on reasonable accommodations in the workplace. Contact them at 1-800-526-7234 or visit www.jan.wvu.edu.
    • The Cancer Legal Resource Center, a non-profit organization, provides information and education on all types of cancer-related legal issues and can explain how the employment discrimination laws work. They can provide information on the ADA and your local state agency. Contact them at 1-866-843-2572 or visithttp://www.lls.edu/academics/candp/clrc.html.
  • Other steps you can take:
    • Write down notes about the employment discrimination you believe is happening. Include the date, time, names of people involved and a description of what happened.
    • The ADA encourages the employer and employee to use Alternative Dispute Resolution (ADR). One type of ADR is mediation. In mediation, the employer and employee try to work out a solution together with a neutral mediator helping them. ADR is voluntary for both the employer and employer, and the mediation process is confidential.
    • If you are a union member, consider speaking with your union representative. If you have a complaint against your employer, you may have to follow the union grievance procedure.
    • If you file a complaint with the EEOC or a state agency, a letter will probably be sent to your employer about your claim. Carefully consider whether this action is one you want to take. It is your choice whether you want to file a complaint.
    • There are time limits for filing a complaint against your employer. If you suspect discrimination, learn what the time limits are. If you do not bring a claim within these time limits, you may lose your rights under state and/or federal laws.
    • Your local or state bar association may be able to provide the names of attorneys who specialize in employment discrimination law. There may be a small fee to consult with an attorney referred by the bar associations. An attorney may charge an hourly rate to advise you on your rights or may charge a contingency fee (often a percentage of the money collected for winning a case) to represent you.

 

Employment Discrimination: Additional Resources

The resources listed below provide more detailed information and support services to help you with employment discrimination. Please read the Detailed Information and Suggestions document for more information and questions to ask.

LIVESTRONG Navigation Services
LIVESTRONG.org/Get-Help

Online: Complete an intake form through the LIVESTRONG website.
Phone: 1.855.220.7777 (English and Spanish)
Navigators are available for calls Monday through Friday, 9 a.m. to 5 p.m. (Central Time). Voicemail is available after hours.

LIVESTRONG offers assistance to anyone affected by cancer, including the person diagnosed, loved ones, caregivers and friends. The program provides information about fertility risks and preservation options, treatment choices, health literacy and matching to clinical trials. Emotional support services, peer-to-peer matching and assistance with financial, employment and insurance issues are also available. To provide these services, LIVESTRONG has partnered with several organizations including Imerman Angels, Navigate Cancer Foundation, Patient Advocate Foundation and EmergingMed.

Cancer Legal Resource Center (CLRC)
www.disabilityrightslegalcenter.org

Email: clrc@lls.edu
Phone: 1-866-843-2572 or 213-736-1455
TTY for deaf and hard of hearing callers: 1-213-736-8310

The Cancer Legal Resource Center (CLRC) provides information about cancer-related legal issues to survivors, loved ones, friends, employers, health care professionals and others coping with cancer. CLRC information covers health insurance, employment, government benefits, estate planning, advanced health care directives, family law and consumer assistance. Through the CLRC national toll-free Telephone Assistance Line callers can receive information about laws and resources for their particular situation. The CLRC volunteer panel of attorneys and other professionals can provide more in-depth information and counsel to CLRC callers. All CLRC services are free and confidential. Services are available in both English and Spanish.

Job Accommodation Network
www.jan.wvu.edu

Email: jan@jan.wvu.edu
Phone: 1-800-526-7234
This number is TTY-equipped for deaf and hard of hearing callers. Calls are answered Monday-Friday, from 9:00 a.m. to 6:00 p.m. (EST). Voicemail is available after hours.

The Job Accommodation Network website offers tools to help you understand the types of workplace adjustments that may help you to continue working during and after cancer treatment. The American Disabilities Act (ADA) is described in detail. Examples of worksite modifications and self-employment information are also provided.

National Coalition for Cancer Survivorship (NCCS)
www.canceradvocacy.org

Email: info@canceradvocacy.org
Phone: 1-877- 622-7937
An information specialist is available from 8:30 a.m. to 5:30 p.m. (EST).

The NCCS website provides comprehensive information on a wide range of cancer topics. These include managing the side effects of cancer treatment, controlling pain, understanding clinical trials, maintaining good nutrition and exercise habits, getting the most out of your health insurance coverage and addressing employment issues. The NCCS also offers the Cancer Survival Toolbox, a free audio program created to help people develop skills to help with communicating, decision making, problem solving, finding information, negotiating, and standing up for your rights. They also offer a variety of publications that can be ordered free of charge. Information on the NCCS website is available in Spanish, and the Cancer Survival Toolbox is available in both Spanish and Chinese.

U.S. Equal Employment Opportunity Commission
www.eeoc.gov

Email: info@ask.eeoc.gov
Phone: 1-800-669-4000
TTY for deaf and hard of hearing callers: 1-800-669-6820
Calls are answered by customer service representatives from 8:00 a.m. to 8:00 p.m. (EST). Translators are available for more than 150 languages.

The EEOC is the federal agency that oversees and enforces employment laws. The website provides information about different types of discrimination, how to file a charge of discrimination and important laws regarding this subject. Information on the site is available in Spanish and several other languages.

 

Source: Livestrong