The Americans with Disabilities Act, or “ADA,” is a federal law intended to ensure that disabled people have the same rights and opportunities as non-disabled people. The Act was passed by Congress in 1990, and it largely prohibits discrimination against disabled people by being similar to the prohibition of discrimination based on national origin, race, or gender.
Such prohibition against discrimination covers:
- Federal;
- State; and
- Local government services, public accommodations, commercial facilities, and transportation.
According to the ADA, employers must provide reasonable accommodations in order to make employment and the workplace accessible to their disabled employees. Additionally, businesses are required to make reasonable accommodations in an effort to ensure access to customers with disabilities. Accommodations will be further discussed below, as well as penalties for failure to comply with the requirements of the Act.
The ADA defines disability as:
- A physical or mental impairment that substantially limits major life activities and/or bodily functions;
- A record of impairment, even if it is not classified as a medical disability; and/or
- A condition that leads to a person being “regarded as having a disability.”
Some examples of specific conditions that are considered to be disabilities include:
- Physical Conditions: Hearing impairment, vision impairment, diabetes, epilepsy, intellectual disabilities, missing limbs, cancer, cerebral palsy, HIV infection, multiple sclerosis, muscular dystrophy and mobility impairments;
- Participation in a drug rehabilitation program; and
- Mental and Emotional Conditions: Autism, cerebral palsy, HIV infection, multiple sclerosis, mobility impairments, major depressive disorder, bipolar disorder, obsessive-compulsive disorder, and schizophrenia.
When Is Cancer Considered To Be A Disability?
When cancer substantially limits one or more of a person’s major life activities, then it is considered to be a disability under the ADA. An impairment is considered to be “substantially limiting” when a person is substantially limited in performing a major life activity when compared to those who do not have the same impairment or disability.
Major life activities include major bodily functions, as well as:
- Caring for oneself;
- Seeing;
- Hearing;
- Eating;
- Sleeping;
- Walking;
- Standing;
- Sitting;
- Reaching;
- Lifting;
- Bending;
- Speaking;
- Breathing;
- Learning;
- Reading;
- Concentrating;
- Thinking; and
- Working.
According to the ADA, cancer does not need to directly limit a major life activity. What this means is that if the effects of cancer or treatment for cancer limit major activities, and not necessarily the cancer itself, cancer will be protected as an ADA disability. An example of this would be how cancer treatment can cause fatigue that inhibits alertness and thinking. Because thinking is a major life activity, cancer meets the definition of “substantially limiting.” Another example of this would be how if cancer causes depression, the cancer is considered to be a disability even if the disease itself does not substantially limit anything.
Can My Employer Legally Ask If I Have Cancer, Or If I Am Receiving Cancer Treatment?
Under the ADA, employers may not discriminate against qualified and disabled employees. Employers discriminate against someone if they deliberately ask questions which are likely to make an employee respond by revealing they have a disability. As such, an employer may not directly ask an employee if they have cancer, and they cannot ask an employee a question that is designed to ultimately reveal the presence of a disability. An example of this would be how an employer may not ask “indirect” questions, such as “Are you undergoing chemotherapy?”
It is important to note that an employer can ask questions that are related to an applicant’s ability to perform a job. An example of this would be how a job may require that an applicant be able to lift heavy objects, stand for extended periods, or travel. For this specific job, an employer may ask an employee (disabled or not) if they can do these things.
What Is Considered To Be A Reasonable Accommodation?
An employer is not required to hire or retain someone who cannot perform the essential functions of their position. Essential functions are job duties an employee must be able to perform for a particular role. An example of this would be how a job may require an employee to use a computer; as such, the essential functions of this job would likely include computer operation, and data entry and retrieval.
If an employee can perform these functions, they are said to be qualified to perform the job. If they are not qualified to perform these functions, the employee is not qualified for the job and the employer need not hire or retain the employee. This remains true whether the employee is disabled or not.
As previously mentioned, employers are required to provide reasonable accommodations. An employee with cancer who is qualified may ask for reasonable accommodation so that they can continue to perform their essential functions. Reasonable accommodations are changes or modifications to the workplace, or the way in which a task is performed.
In terms of cancer specifically, an example of this would be how an employee must perform a job which has essential requirements associated with computer knowledge, by standing for a significant period because the employer has a standing-desk policy. Because the act of standing is not necessary to perform the essential job function of computer knowledge, an employee who has cancer may request a chair as a reasonable accommodation.
When an employee asks for reasonable accommodation, the employer may respond by asking for specific information in order to accommodate the employee. An example of this would be how they may ask for documentation from the employee’s physician which explains the need for the accommodation. Or, if an employee requests sick leave as a form of accommodation, their employer may ask the employee to provide a doctor’s note justifying such a request.
However, it is important to note that the employer may do so only if the employer requires all employees requesting sick leave to provide the note. Meaning, employers may not ask for more information than is strictly necessary in order to fairly evaluate the employee’s need for an accommodation. Additionally, employers may not ask for information that is irrelevant to the issue of whether a particular accommodation is reasonable.
Are There Any Legal Penalties For Cancer Discrimination?
In terms of consequences for ADA violations, this can include:
- Citations;
- Fines; and/or
- An injunction.
Civil penalties can reach as high as $75,000 for a first violation, and up to $150,000 for a subsequent violation.
An injunction is a court order. For an ADA violation, the injunction would require the employer to correct the inadequate conditions and make the requested accommodation. Additionally, if the patron of a business were injured because of an ADA violation, the business owner could face a private civil lawsuit filed by the injured patron. This could potentially lead to personal injury liability and damages.
Do I Need An Attorney For Cancer Discrimination?
If you are facing workplace discrimination because of a cancer diagnosis, or are being denied disability benefits, you should consult with an experienced and local discrimination lawyer.
An attorney will be best suited to helping you understand your state’s specific workplace and discrimination laws, as well as what your legal rights and legal options are at both the state and federal levels. Additionally, your discrimination attorney will also be able to represent you in court, as needed.
