How job discrimination laws protect cancer survivors

When it comes to your job and what you do as part of that job, federal law and many state laws say that an employer cannot treat you differently from others because of your history of cancer. This is true as long as you are capable of doing the job. These laws protect you only if:

1. You have the necessary skills, experience, and education needed for the job and you can do the most important duties of the job in question.

2. You were treated differently from other workers in job-related activities by your employer because of your history of or treatment for cancer.

3. At some time, your cancer greatly limited your ability to do everyday job activities or your employer thought that your cancer did so.

The Americans with Disabilities Act (ADA) does not allow some types of job discrimination against people who have or have had cancer. This includes employers who have at least 15 employees, employment agencies, and labor unions. Every state also has a law that controls, to some extent, job discrimination based on disability. Some laws clearly do not allow discrimination based on cancer, while others have never been applied. State laws also vary as to which employers—public or private, large or small—must obey the law.

Under federal law and most state laws, an employer must provide you a reasonable accommodation. An accommodation is a change, such as in work hours or duties, so that you can do your job during or after cancer treatment. Employers can make more than 1 accommodation. For example, if you need to take time off for treatment, your employer may let you work flexible hours until you finish treatment. But an employer does not have to make changes that would be too costly or upsetting to the company.

In some cases, the family members of cancer survivors may be protected from discrimination. The ADA does not allow discrimination because of a family member's relationship or association with a person who is disabled. Employers may not assume that a family member's job performance would be affected if that person needs to care for another family member who has cancer. For example, employers may not treat you differently because they assume that you would use too much leave time to care for your spouse who has cancer. Also, employers that give health insurance benefits to their employees for their dependents may not decrease these benefits to an employee solely because that employee has a dependent who has cancer. State laws, however, do not protect you if an employer treats you differently because a family member has cancer.

According to the ADA and many state laws, discrimination based on genetic information relating to diseases, such as cancer, is not allowed. For example, an employer may not ask you for the results of a genetic test or treat you differently because of your genetic history.

You also may have the right to take medical leave under your employer's policies, a state law, or federal law. The Family and Medical Leave Act (FMLA) is a federal law that requires employers with 50 or more employees to provide up to 12 weeks of leave. During this time, you are not paid, but your job position is protected. This law covers family members who need time off to care for their own serious health condition (which includes most cancers). It also covers family members who need time off to care for a seriously ill child, parent, spouse, or a healthy newborn or newly adopted child. You must have worked at least 1,250 hours over the past 12 months or about 25 hours per week for 1 year to be covered. You must also reasonably try to arrange medical care that is likely to be needed so you do not over upset the workplace. An employer must continue to provide benefits—including health insurance—during the leave period.

The ADA does not require employers to provide health insurance. The ADA and some state laws, however, do require those employers who offer health insurance to be fair. For example, your employer gives health insurance to all employees with jobs similar to yours, but does not give you health insurance. Your employer's refusal may be considered discrimination under the ADA. The employer must prove that not giving you health insurance is based on valid statistics or that the insurance plan would suffer serious financial problems. For example, if your employer is a small business that can prove it is unable to get an insurance policy that will cover you, the employer may not have to give you the same health benefits given to your coworkers.

Every state has laws that control the insurance industry. For example, some states do not allow insurance companies to look at your cancer history when issuing a new policy. Contact your state insurance commissioner about the rights in your state. And if you have health insurance through a group plan at work, 1 federal law—ERISA—prohibits your employer from firing you to prevent you from collecting your benefits.

How to prevent discrimination

Lawsuits are not the only or the best way to fight job discrimination. State and federal laws against discrimination help cancer survivors in 2 ways. First, they discourage discrimination. Second, they offer ways to correct discrimination when it does happen. These laws, however, should be used as a last resort. They can be high in cost and take a lot of time. And the results are not always fair. The first step is to try to avoid discrimination. If that fails, the next step is to attempt a reasonable settlement with the employer. But if informal efforts don't work, then a lawsuit may have to be the next step.

If you are looking for a new job, you can take several steps to lessen the chance that you will face discrimination because of your cancer history.

• Do not freely give information that you have or have had cancer unless it directly affects your abilities to do the job.  An employer has the right—under accepted business practices and most state and federal laws—to know only if you can do the necessary duties of the job.

• Do not lie on any application. If you are hired and your employer later learns that you lied, you may be let go for your dishonesty. Insurance companies may refuse to pay benefits or cancel your coverage if you lie about your condition on an insurance form. Federal and state laws that prohibit job discrimination do not guarantee that all employers will hold back from illegally asking survivors about their cancer histories or gaps in education or employment. If you are asked a question that you think is illegal, give an honest (and perhaps indirect) answer that emphasizes your current abilities to do the job.

• Keep in mind your legal rights. For example, under the ADA, an employer may not ask about your medical history, make you to take a medical exam, or request medical records from your healthcare provider before making a conditional job offer. Once an employer has made a conditional job offer, the employer can require you to have a medical exam only if it is required of all other persons who apply for the job. The medical exam may take into account only your ability to safely do the required duties of that job.

• Keep the focus on your current ability to do the job in question.  Employers may not ask how often you were absent from past jobs. But they can ask if you can meet the employers' current rules for attendance.

• Apply only for jobs that you are able to do. It is not illegal for an employer to not hire you for a job if you are not qualified for it, regardless of your medical history.

• Explain any long periods of not working during cancer treatment, if possible, in a way that shows your illness is past and that you are in good health and are expected to remain healthy.  One way to take the focus off of a gap in your school or work history because of cancer treatment is to organize your resume by experience and skills, instead of by date.

• Offer your employer a letter from your healthcare provider that explains your current health status, prognosis, and ability to work. Be prepared to teach the interviewer about your cancer and why cancer often does not result in death or disability.

• Get help from a job counselor or social worker with resume preparation and job interviewing skills. Practice answers to expected questions such as, "Why did you miss a year of work?" or "Why did you leave your last job?" Be honest when answering these questions. But stress your current qualifications for the job and not past problems, if any, resulting from your cancer experience.

• If you are interviewing for a job, do not ask about health insurance until after you have been given a job offer. Then ask to see the benefits package. Review the information before you accept the job to make sure it meets your needs.

• Do not discriminate against yourself by assuming that cancer leaves you unable to work.  Although cancer treatment leaves some survivors with real physical or mental disabilities, many survivors are able to do the same duties and activities as they did before having cancer. With the help of your medical team, do an honest review of your abilities and compare them with the mental and physical demands of the job.

How to enforce your legal rights

If you suspect that you are being treated differently at work because of your cancer history, consider an informal solution before jumping into a lawsuit. You want to stand up for your legal rights without making yourself look like a troublemaker.

If you face discrimination, consider the following suggestions:

• Use your employer's policies and procedures to settle employment issues informally.

• If you need some kind of modification to help you work, such as flexible working hours to keep healthcare providers' appointments, suggest several alternatives to your employer.

• Teach employers and coworkers who might believe that people cannot survive cancer and remain productive workers about cancer.

• Ask a member of your healthcare team (healthcare provider or social worker) to write or call your employer to help settle the conflict and suggest ways for your employer to accommodate you.

• Seek support from your coworkers.

• If informal solutions don't work, keep in mind these steps to protect your right to file a lawsuit:

  • Keep carefully written records of all job actions, both good and bad.

  • Pause before you sue.  Carefully review your goals. For example, do you want your job back or a change in working conditions? Or do you want certain benefits, a written apology, or something else? Look at the positive and negative aspects of a lawsuit. Positive aspects can include getting a job and monetary damages, protecting your rights, and tearing down blocks for other survivors. Negative aspects can include long court battles with no promise of winning. Some cases can drag on for 5 years or more. And there can be legal fees and expenses and stress. You can experience a harsh relationship between you and the people you sue and a reputation in your field as a troublemaker. 

  • Consider settling your complaint in an informal way. Someone, such as a union representative, human resources or personnel officer of your company, or a social worker, may be able to assist you and act as a go-between. Your state or federal representative or local media may help influence your employer to treat you fairly. Keep in mind that the first step most government agencies and companies take when they receive a complaint is to try to resolve the dispute without a costly trial.

  • Be aware of filing deadlines so you do not lose your option to file a complaint under state or federal law. You have 180 days from the date of the action against you to file a complaint under the ADA. You would file the complaint with the U.S. Equal Employment Opportunity Commission. If you work for the federal government, you have only 45 days to begin counseling with an equal employment opportunity counselor. Under most state laws, you have 180 days to file a complaint with the state agency. If you file a complaint and later change your mind, you can drop the lawsuit at any time. To file a lawsuit, you must follow the procedures established by each law.

    • Americans with Disabilities Act.  To file a complaint related to your cancer history with an employer, covered by the ADA you must file a complaint with the Equal Employment Opportunities Commission (EEOC) to enforce your rights. To get the location of the EEOC office in your area, call the EEOC Public Information System in Washington, DC at 800-669-4000. You can get publications from the EEOC that explain the ADA and how to enforce your rights under the law by calling 800-669-EEOC.

    • Family and Medical Leave Act.  To file a lawsuit under the FMLA, you have 2 choices. You may file a lawsuit in court. Or you may file a complaint with the Employment Standards Administration, Wage and Hour Division of the U.S. Department of Labor. For information about the Department of Labor office closes to you, call 866-4USWAGE. Most complaints filed with the Wage and Hour Division are resolved informally.

    • State laws. Most states have a state agency that carries out the state fair employment practices law. Some states allow you to file a lawsuit in state court. For more information about the laws in your state, check out your state division on civil rights or human rights commission, or an attorney who is experienced in job discrimination cases. The EEOC Public Information System at 800-669-4000 can help you find the appropriate state enforcement agency. Also check your local telephone book under "State Government."

Even if your legal rights were violated, there is no guarantee that a public agency or court will give you a fair solution. A trained job counselor, social worker, nurse, or clergy may help you deal with the personal issues that result from job discrimination due to your cancer history.

You can learn more about your employment rights and cancer survivorship from the National Coalition for Cancer Survivorship:

NCCS

8455 Colesville Road Suite 930

Silver Spring, MD 20910

877-622-7937 (877-NCCS-YES)

http://www.canceradvocacy.org/

You can learn more about your employment rights and other basic skills to meet challenges posed by a cancer diagnosis from the Cancer Survival Toolbox. The Toolbox is a free set of audio programs developed by the National Coalition for Cancer Survivorship, Oncology Nursing Society, and Association of Oncology Social Work. The programs are available in English and Spanish and cover:

1. Communicating

2. Finding information

3. Making decisions

4. Solving problems

5. Negotiating

6. Standing up for your rights

7. Covering topics for older persons

8. Finding ways to pay for care

The Toolbox can be found at: http://www.canceradvocacy.org/toolbox/.