Cancer Discrimination: How to Know if You Have a Case

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Cancer Discrimination: How to Know if You Have a Case

Over 1.6 million people are diagnosed with cancer each year according to CDC reports. In California, 163,726 new cases were diagnosed in 2020. The CDC admits that missed screenings during the pandemic may lower these rates, so they could be much higher.

The five most prevalent cancers are:

  • Breast cancer
  • Prostate cancer
  • Lung/bronchus cancer
  • Colorectal cancer
  • Uterine cancer

Treatments vary from one patient to the next, but common treatments include surgery, chemo, radiation, hormone therapy, immunotherapy, and bone marrow transplants. With any treatment, the need for time off work is imperative. If you’re supporting a loved one with cancer, you may need to take weeks off to help with their care. Does your employer keep you from doing everything possible to take care of yourself or an immediate family member?

Even if you don’t have cancer currently, a new employer may ask if you have or have ever had cancer. Is that legal? Our guide on cancer discrimination covers everything you should know about determining if you have a cancer discrimination case against an employer.

What Is Cancer Discrimination?

The Americans With Disabilities Act of 1990 protects the civil rights of people with disabilities. It protects them on public transportation, in public buildings, and at work. The ADA also protects people who are or need to use state and local government services or data/video/voice communication.

Because cancer qualifies as a long-term disability, the ADA helps people with cancer, too. You might not have a disability, but cancer treatments can sap your strength, make you feel sick 24/7, or make it harder to do your job duties. The ADA protects you if you’re having a hard time doing physical tasks, standing, or speaking, which makes it difficult to do your job.

Cancer discrimination occurs when your employer, public building, or state/local government service denies you something you would get if you were disabled, but there’s more than that. If you tell your employer that you have cancer and need time off for treatment, you cannot be fired because you have cancer. If you have a job that requires standing up, you may need a chair for your shift. Your employer should do everything possible to accommodate your needs. 

The ADA does more than protect you at work. You’re applying for a new job, and the first question the employer asks is why you took a year off. When the employer learns you have cancer, the interview ends and you’re told you’re not a good candidate. Your past cancer diagnosis cannot be used to determine your eligibility for a position.

Can You Be Fired During Cancer Treatments?

Chemotherapy treatments can last up to six months, and you might be called in for maintenance chemotherapy for months or years. At that time, you might not feel up to working the same duties you used to do. You might be more tired than usual or feel nauseous and need to make sure you’re eating and drinking more often. You might need an office near the bathroom. 

Your employer has to accommodate those needs. The only reason they can opt-out is if the cost of accommodating you is too expensive. For example, if the only bathroom is three floors away, the cost of adding a bathroom near your office may be too much.

Your employer must try to work with you to figure out how to accommodate you, even if it’s a transfer to another department for now. If that’s not possible, there may be no option but to let you go. It’s not ideal, but sometimes there are no other options. 

But, some employers learn a worker has cancer and go into a panic thinking about the work that needs to get done and the time the employer needs to take off. Some start to question the increased cost of health insurance for employees on a group plan. It isn’t your problem, but some HR departments will try to keep costs down by removing a position. They hear that a worker has cancer and decide to cut that position sooner rather than later. That’s questionable and could violate an employee’s rights.

What Can an Employer Ask, and What Is Off Limits?

What can an employer do and what can’t they do? Here are some different scenarios that can help understand what’s allowable at work or during an interview.

Current employees may be asked for medical paperwork.

If you’re already working there, you can be asked why you need FMLA leave or disability, and you may need to have paperwork filled out by your doctor. If you need work accommodations, your employer can ask what you need and why they’re important. FMLA is important for having time off without the risk of losing your job.

Disability insurance ensures you get some pay during your time off. If you’re caring for a family member with cancer, paid family leave (PFL) is available for up to eight weeks if you qualify. Remember that paid family leave is an option when you have to care for a family member.

Employees have to watch what they ask during a job interview. 

If you’ve been offered a job and accept it while saying that you do have or have had cancer, the employer can ask questions regarding your treatments or any need for accommodations at that point. If the job offer is rescinded, that’s illegal.

Legally, a potential employer cannot ask a job applicant if they’ve ever had cancer or are undergoing cancer treatments. They cannot ask how many sick days you’ve taken for anything from surgery to medical appointments. Until you have the job, this information is not something the employer needs unless it relates to job duties.

A potential employer can ask if you’re able to lift as much as 50 pounds and bend and lift heavier items. Your employer can ask if you’re able to travel or work different hours or overtime regularly. As these can be normal job duties, an employer is allowed to ask questions like that.

You do not have to disclose that you’ve had cancer or currently are undergoing treatments. You might want to do this if you are going to need accommodations should you get the job. If you know you need flexible hours, it’s helpful to make that clear straight away. You never know, too, as some employers enjoy having workers who are willing to work off-hours.

Even if you do reveal you have or have had cancer, the employer cannot ask you follow-up questions if you have made it clear accommodations are unnecessary. If you reveal you’re undergoing chemotherapy and radiation treatments and appreciate that the job is 6 a.m. to 1 p.m., which doesn’t impact the afternoon schedule of medical visits, the employer cannot ask more questions. 

However, if you reveal you had abdominal surgery for colorectal cancer but cannot lift more than 50 pounds, a follow-up question regarding accommodations is allowed. The employer could ask if a handcart would be helpful.

Get Help With Cancer Discrimination

If you feel you’re the victim of cancer discrimination at work or in a public area, don’t accept it as allowed. It could very well be illegal, and you have a valid case against another party or your employer. Talk to an attorney versed in cancer discrimination laws.

Shegerian Conniff advocates for fair, legal treatment in the workplace. If you have cancer or have finished treatments and are being discriminated against, we’ll fight for you. Reach us online or by phone to discuss your case and arrange a free consultation.

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