Disability Discrimination Based on Cancer

Atlanta Attorney Skilled in Advising Employers and Employees

People facing cancer should be able to focus their attention on taking care of themselves and fighting the disease. Unfortunately, many individuals must continue to work while they deal with serious medical conditions. Some employers may discriminate against an employee based on illness. However, federal law prohibits discrimination based on an illness or medical condition that qualifies as a disability under the Americans with Disabilities Act (ADA). If you are concerned about a potential disability discrimination issue in an Atlanta workplace, the capable lawyers at Parks, Chesin & Walbert can advise you on your rights and options.

The Americans with Disabilities Act (ADA) and Protections for Employees with Cancer

With millions of Americans living with cancer, many people are working while dealing with this serious condition. Even after the cancer is in remission, some people may still face a stigma.

The ADA prohibits employers with at least 15 employees from discriminating against “qualified” individuals because of a disability. A person is a “qualified individual” for a particular job if he or she can perform the essential functions of that job, even if he or she requires a reasonable accommodation to do so. Employers may not discriminate in either the hiring process or during employment on this basis.

A person is considered disabled for purposes of the ADA if he or she has an impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment. Since an amendment that took effect on January 1, 2009, substantial limitation of a major life function is determined without regard to any mitigating or ameliorative measures the person may take. A person whose condition is controlled with medication may still qualify as disabled under the ADA. The law’s protections are also available for a condition that is episodic or in remission if the impairment would limit a major life function when active. This amendment allows employees to continue to receive the protection of the ADA when cancer is in remission and they are no longer impaired at present.

Reasonable Accommodations

An employer must make reasonable accommodations to allow a qualified individual to perform the job. Employers do not have to make accommodations that would create an undue hardship. There is no set list of reasonable accommodations. What is reasonable will depend on the facts and circumstances. Possible accommodations for an employee with cancer may include increased rest periods, a modified schedule, or permission to work from home.

Privacy and Confidentiality

Employers also should not ask job candidates if they currently have or have previously had cancer. An applicant does not have to disclose that he or she has cancer, although some may choose to do so to request an accommodation during the application process or to notify the employer that they will need a reasonable accommodation to perform the job. An applicant may instead request an accommodation after accepting the position if he or she does not want to disclose the disability during the application process. Employers may not disclose the employee’s medical condition or disability information to other employees or explain that the employee is receiving a reasonable accommodation.

Remedies under Federal and State Laws

The EEOC enforces the employment discrimination provisions of the ADA. Employees or job candidates wishing to pursue a claim for employment discrimination under the ADA must file a charge with the EEOC within 180 days of the discrimination. A person who fails to file with the EEOC is barred from bringing a civil lawsuit.

A victim of disability discrimination may be able to recover back pay, compensatory damages, and punitive damages. Other remedies, such as injunctive relief, hiring, or reinstatement, may also be available.

In addition to the protections provided by federal law, Georgia has a statute that allows employees to take legal action against disability discrimination at O.C.G.A. 34-6A-6. A person pursuing a state law claim may be able to obtain an injunction or restraining order, hiring, or reinstatement. The court may require the employer to provide the employee with training programs, and he or she may also be able to recover back pay, as well as court costs and attorneys’ fees.

Consult an Employment Discrimination Lawyer in the Atlanta area

Parks, Chesin & Walbert understands the ADA and Georgia laws on disability discrimination that can affect individuals suffering from cancer or other medical conditions. From our Atlanta office, attorneys at Parks, Chesin & Walbert can advise both employers and employees on these complex issues. Call us at 404-873-8048 or contact us online to make an appointment.