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Dealing with Discrimination in the Workplace

Despite significant gains in cancer survival rates and the passage of the Americans with Disabilities Act, a federal law that prohibits discrimination against individuals with disabilities, people with cancer still experience barriers to equal job opportunities. One reason individuals with cancer face discrimination at work is their supervisors’ and co-workers’ misconceptions about their ability to work during and after cancer treatment. Even when the prognosis is excellent, some employers expect that a person diagnosed with cancer will have long absences from work or not be able to focus on duties. Today, however, unlike years ago when cancer was considered a “death sentence,” most working-age cancer survivors return to work and have relatively the same productivity rates as other workers.

Safety Concerns
When it comes to safety, an employer should be careful not to act on the basis of myths, fears, generalizations, or stereotypes about cancer. Instead, the employer should evaluate each individual on his or her knowledge, skills, experience, and the extent to which cancer affects his or her ability to work in a particular job.

An employer only may exclude an individual with cancer from a job for safety reasons when the individual poses a direct threat. A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation. This determination must be based on objective, factual evidence, including the best recent medical evidence and advances to treat and cure cancer.

Today, however, unlike years ago,most working-age cancer survivors return to work and have relatively the same productivity rates as other workers.

Harassment
The ADA also prohibits harassment based on disability just as other federal laws prohibit harassment based on race, sex, color, national origin, religion, or age. Harassment is actionable under the ADA when a person is subjected to offensive conduct that is sufficiently severe or pervasive to create a hostile or abusive work environment. Employees who believe that they have been harassed because of cancer may file a charge with the U.S. Equal Employment Opportunity Commission.

Legal Enforcement
Any person who believes that his or her employment rights have been violated on the basis of disability and wants to make a claim against an employer must file a charge of discrimination with the EEOC. A third party also may file a charge on behalf of another person. For example, a family member or other representative can file a charge on behalf of someone with cancer who may be unable to file a charge.

Before a formal investigation, the EEOC may select the charge for EEOC’s mediation program. Both parties must agree to mediation, which may prevent a time-consuming investigation of the charge. Participation in mediation is free, voluntary, and confidential.

If mediation is unsuccessful, the EEOC investigates the charge to determine if there is “reasonable cause” to believe discrimination has occurred. If reasonable cause is found, the EEOC will then try to resolve the charge with the employer. In some cases, where the charge cannot be resolved, the EEOC will file a court action. If the EEOC finds no discrimination, or if an attempt to resolve the charge fails and the EEOC decides not to file suit, it will issue a notice of a “right to sue,” which gives the charging party 90 days to file a court action.

Retaliation
The ADA prohibits retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, or testifies or participates in any way in an investigation, proceeding, or litigation. Persons who believe that they have been retaliated against may file a charge of retaliation with the EEOC.

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