Unfortunately, some employers discriminate against employees with cancer, often out of misperceptions about a cancer patient’s ability to work. In many such cases, both the employer and employee may not be aware that such discrimination may be illegal under both federal and Texas state law. These laws are not widely known and are difficult to interpret. Anyone who has cancer and feels s/he is being discriminated against by her/his employer as a result of this disease should contact a qualified employment lawyer—such as those at Kilgore & Kilgore, who is well-versed in employment law. Hundreds of thousands of working-age adults are diagnosed with cancer every year. With advances in modern cancer treatment, survival rates have increased dramatically. A large number of people are able to continue to work while they battle this disease. In fact, for many cancer patients, their job is a critical lifeline.
The Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act (ADAAA), and the Texas Labor Code Chapter 21 (TLC Chapter 21) prohibit employers with more than 15 employees and state and local government employers from discrimination against qualified individuals with disabilities. The Rehabilitation Act of 1973 provides similar protections for federal government employees.
A qualified individual under the ADA, ADAAA and TLC Chapter 21 is a person who:
- Has a physical or mental impairment that substantially limits one or more
major life activities, - Has a history of having a substantially limiting impairment, or
- Is regarded as having a disability.
Under the ADAAA, physical or mental impairments include psychological disorders, cosmetic disfigurement, anatomical loss effecting the neurological, musculoskeletal, special sense organs, respiratory and speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. Also covered are mental or psychological disorders, mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities. Under this definition, persons with cancer will often be considered to have a disability and be protected by the ADA, ADAAA and TLC Chapter 21. An employer cannot discriminate against an employee or job applicant with a disability if such person is able to perform the essential functions of the job with or without a reasonable accommodation. A reasonable accommodation is a requested action that enables an employee to perform the required functions of his/her job. An employer is required to make a reasonable accommodation for a person with cancer unless the request causes undue hardship to the employer.
In addition, the ADA and ADAAA prohibit harassment of an employee with cancer. Also prohibited is discrimination against a person based on his /her association with a person with cancer. This means, for example, that an employer could not discriminate against a person whose spouse has cancer. The reasonable accommodation provisions do not apply in this case.
The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the ADA and ADAAA. It is aggressive in bringing actions against employers who discriminate against employees or job applicants with cancer. Recently, the EEOC brought a claim against a Texas mixed concrete company that fired a newly hired employee who told them he needed a few days off for cancer treatment.
“An employee should feel comfortable disclosing his or her disability to a supervisor without fear of being fired as a result,” said EEOC trial attorney Meaghan Shepard.
It’s important to note that the ADA and ADAAA apply to management as well as staff-level employees. In fact, the EEOC recently brought a claim against the operator of a Dunkin’ Donuts stores at Baltimore-Washington International Airport. Dunkin’ Donuts refused to provide medical leave to a regional manager with cancer and allegedly fired her because of her disability. In Texas, the CEO of the company called Tuesday Morning filed an ADA cancer discrimination lawsuit in Dallas that was later settled.
The ADA and ADAAA are very complex statutes. This legal work requires an understanding of how their provisions have been interpreted by the courts and relevant government agencies such as the EEOC. For example, to determine whether an employer has engaged in prohibited discrimination, it is necessary to determine whether a major life activity has been substantially limited. Or if a person could substantially perform a job with a reasonable accommodation, what would and would not be considered a reasonable accommodation under the circumstances. In addition, there is a specific procedure which must be followed to bring a claim under the ADA and ADAAA, and a specific time limit for doing so. As a result, for a person wishing to bring a claim against his/her employer under the ADA, ADAAA and/or the TLC Chapter 21, it is essential that they contact a good employment lawyer, such as Kilgore & Kilgore.
Kilgore & Kilgore is experienced in employment discrimination matters and employment law. If you have cancer and believe that you have suffered discrimination by your employer, or a potential employer with whom you have interviewed, contact us. Our employment law attorneys are ready to evaluate your situation. Email us today at dem@kilgorelaw.com or call at (214) 060-9099 for a free review of the facts of your case with a Dallas employment lawyer.
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