Published on April 3rd, 2018 by Alan L. Sklover
“Whoever said winning isn’t everything
wasn’t fighting cancer.”
– Author Unknown
ACTUAL CASE HISTORY: Theresa, 48, an experienced Architectural Draftswoman, was seeking to return to the workforce after not working for four years. After hearing of a job opening at a large architectural firm for which she seemed perfectly suited, Theresa submitted her resume, and she was soon asked to come for an interview.
Theresa responded quickly, and after two interviews that went extremely well, she was told that the partner in charge of hiring for the job was her only remaining step. Unfortunately, that interview was unusual for its focus, from the first moment to the last, on her reasons for being out of the workforce for four years.
After several rather penetrating questions about the reasons for her being out of work for four years, Theresa felt she had no choice but to share what she did not want to share: that she had been battling ovarian cancer, and now, for the first time in years, felt strong enough to commit to full-time work. “Finally,” she thought to herself, “that’s out of the way. Maybe now we can talk about ‘what really matters,’ namely the position’s responsibilities and the corporate culture.”
Her interviewer apparently thought differently, and simply proceeded to ask her if she was certain she had the energy to do the job, what medicines and treatments continued, and – pointedly – what was her prognosis. As Theresa complied, with each additional question, she was less and less certain that she wanted to work for this firm.
Not surprisingly, Theresa did not get an offer for the job.
LESSON TO LEARN: Any person who is struggling with cancer, or who has done so in the past, knows what it means to fight for your life. Those who are fighting cancer surely have a lot on their “plate.” Those who are battling the disease, or who have done so in the past, AND who are seeking work, have more on their “plate” than most people can imagine. This newsletter is intended to lighten that burden by providing information about how the law provides some protections for them, and for those who care for them.
Disability Law, In General: The Americans with Disabilities Act (“ADA” for short), is the federal law that protects those with disabilities from discrimination in employment based on their disability. The ADA defines “disability” as (a) an impairment that substantially limits a major life activity, or (b) a record or history of having a substantially limiting impairment, or (c) being perceived by others as having a disability. The ADA covers employment by private employers with 15 or more employees, as well as state and local government employers (Section 501 of The Rehabilitation Act provides similar protections for federal employees).
The U.S. Equal Employment Opportunities Commission (“EEOC” for short) is the federal agency that enforces the provisions of the ADA. With certain different limitations, definitions, and procedures, most states, and even many cities, have their own laws, ordinances and agencies that provide additional protections to employees with disabilities, or who are perceived to have an impairment.
Cancer and Disability Law: The ADA was amended in 2008 to protect job applicants who are battling cancer, or who have done so in the past, from discrimination on that basis. Unique among diseases, cancer is now presumed to be a disability, giving cancer victims more protection from discrimination than are those who suffer from many other diseases.
Unfortunately, despite increasing understanding of the burdens of having cancer, people with cancer still experience barriers to equal job opportunities due to interviewers’, supervisors’ and colleagues’ misperceptions about their ability to work during and after cancer treatment. Even when the prognosis for recovery is excellent, some employers presume that a person diagnosed with cancer will be unable to perform their work duties, will take frequent and long absences from work, will be unable to focus on their duties, and may not survive very long.
Perception of Disability: Although many people don’t know it, you do not need to be disabled in order to be protected by the Disability Laws, which also protect job applicants who are “perceived to be disabled.” So, if for any reason a job interviewer “perceives” you to be disabled, then the prohibition against disability discrimination protects you, too.
Like Theresa in the Case History above, you may not have cancer or any other disability, but nonetheless your interviewer believes you may not be able to work occasional overtime, or if he or she believes you may call in sick a lot, and does not hire you for this reason, the law is on your side, regardless of the fact that, in fact, you have no disability.
[This newsletter is dedicated to the memories of Emil, 66, a friend of 55 years, and Krysten, 40, a close friend of several years, both of whom over the past year have fought the good fight against cancer, but who did not, in the end, prevail.]
EIGHT MOST FREQUENTLY ASKED QUESTIONS, AND THEIR ANSWERS:
1. Why are the cancer-related disability laws so focused on what an interviewer asks a job applicant? First, it is because, why ask someone a question that makes no difference as to their qualifications for the job? If a person is qualified, whether they are African American, or Muslim, or battling cancer, the only issue should be “Are you qualified?” Second, once a person is asked whether they suffer, or have suffered, from cancer, it is impossible to figure out if the later decision – whether or not to hire – was affected by that unrelated information.
It’s like asking a job applicant their religion: the mere asking of the irrelevant question means that it just may be that the interviewer is likely to make her hiring decision based on that irrelevant information.
2. May an employer legally ask a job applicant (in person or on a job application) whether he or she has cancer, or has had cancer in the past, or about what treatment(s) you might have experienced related to cancer? No; generally speaking no employer or interviewer may ask questions such as those unless the job applicant first voluntarily raises the subject of cancer.
An employer may not ask a job candidate about her or his medical condition, or require a job applicant to have a medical examination before it makes a job offer.
Thus, an employer many not legally ask a job applicant questions such as (a) whether he has ever had cancer, (b) whether she is undergoing chemotherapy or radiation, (c) whether she is taking medication used to treat or control cancer, (d) if he has ever done so in the past, (e) whether she has ever taken leave for medical treatment or surgery, or (f) how much sick leave he has taken in the past.
That said, an employer may ask questions pertaining to the job applicant’s abilities or qualifications for, or performance of, the job, such as (i) whether the job applicant can lift up to 50 pounds, (ii) he can travel out of town, or (iii) whether she can work rotating shifts.
3. Does the ADA require a job applicant to disclose to an interviewer or on a job application that she has or had cancer before accepting a job offer? No; a job applicant may not be pressured, required or forced to disclose his history, past or present, with cancer during the interview process.
The ADA does not require job applicants to voluntarily disclose that they have, or had, cancer or another disability unless they will need a reasonable accommodation for some aspect of the application process. This might include, as an example, additional time to take a pre-employment test due to fatigue cause by radiation treatments. However, some individuals who have or have had cancer may choose to voluntarily disclose their condition or former condition to dispel any rumors or speculation arising from their appearance, such as hair loss or emaciation.
Sometimes the decision regarding voluntary disclosure may depend on whether the job applicant will need a reasonable accommodation to perform the duties of the job. For example, flexible working hours may be needed to attend or recover from cancer treatments. A job applicant with cancer, however, may request an accommodation after becoming an employee even if he or she did not do so when applying for the job, or after receiving the job offer.
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4. May an interviewer ask any follow-up questions if a job applicant first voluntarily reveals that he has, or has had, cancer? No, but if the job applicant (a) first, and (b) voluntarily raises the subject of his or her cancer, the employer or interviewer can, in response, ask if they will need an accommodation.
An employer generally may not ask a job applicant who has voluntarily disclosed that he has cancer any questions about the cancer, its treatment or its prognosis. However, If a job applicant voluntarily discloses that he has cancer, and the employer reasonably believes that the applicant will require an accommodation to perform the job because of his cancer, or treatment, the employer may ask whether the job applicant will need an accommodation and what type. The employer must keep any and all information a job applicant discloses about the medical condition confidential.
5. What may an employer do when she learns that an applicant has or had cancer after the applicant has been offered a job, but before applicant starts working? It is permissible for an employer to then ask about whether the job applicant can perform the job with or without an accommodation.
After receiving a job offer, if a job applicant discloses that she has, or had, cancer, an employer may ask the job applicant additional questions, such as whether she is undergoing treatment or experiencing any side effects that could interfere with the ability to do the job or that might require a reasonable accommodation.
The employer may also send the job applicant for a follow-up medical examination or ask him to submit documentation from his physician answering questions specifically designed to assess the job applicant’s ability to perform the job functions safely. Permissible follow-up questions at this stage differ from those at the pre-offer stage when an employer may only ask the job applicant who voluntarily discloses a disability whether she needs an accommodation to perform the job, and what type of accommodation.
An employer may not withdraw a job offer from an applicant with cancer or a history of cancer if the job applicant is able to perform the essential functions of the job, with or without reasonable accommodation without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of himself or others that cannot be eliminated or reduced through reasonable accommodation.
6. What kinds of “reasonable accommodations” may job applicants with history of cancer need or request? Whatever makes sense, given the job duties.
The ADA requires employers to provide adjustments or modifications – called “reasonable accommodations” – to enable job applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an “undue hardship” (that is, a significant difficulty or expense). Accommodations vary depending on the needs of the job applicant or employee with a disability, and the job duties.
Not all employees with cancer will need an accommodation or require the same accommodations, and most of the accommodations that a job applicant or employee might need will involve little or no cost.
An employer must provide a reasonable accommodation that is needed because of the limitations caused by the cancer itself, the side effects of medication or other treatment of the cancer, or both. An employer, though, has no obligation to monitor an employee’s medical treatment or ensure that he is receiving appropriate medical treatment for his cancer.
These are just a few examples of accommodations that job applicants, and newly hired employees, with cancer may need and request:
(1) leave for doctors’ appointments and/or to recuperate from treatment, or to seek further treatment;
(2) periodic breaks or a private place to rest or to take medication;
(3) modified work schedule or shift change;
(4) permission to work from home;
(5) modification of workspace temperature;
(6) permission to use work telephones where the usual policy is to deny such permission;
(7) relocation of his or her office location to be free from climbing stairs to nearer to restroom facilities;
(8) reassignment of marginal tasks to another employee; and
(9) reassignment to a vacant position when the employee is no longer able to perform his current job.
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7. Why does this all seem so complicated? In each stage, (1) pre-offer, (2) post-offer, and (3) on the job, the law looks to “What is a reasonable way to both (a) protect applicants against unfair presumptions based on cancer, and at the same time (b) encourage employers to hire people who are disabled but still capable of performing the essential duties of the job?” It is not always an easy task to accomplish.
Having to need a wheelchair and a wheelchair ramp may be a lot easier to accommodate than it is with “internal” disabilities, such as those arising from cancer or emotional problems. The focus in disability law is fairness to both employee and employer because each one of us may, tomorrow, discover cancer in our bodies, or become disabled from car accidents, and the like.
As a society, we strive to permit people to continue in productive lives, regardless of the unfortunate event of becoming disabled. It is not a simple process, but requires significant introspection, empathy and often even creativity. But as a society, we know and appreciate that “Tomorrow, it may happen to me or to my loved ones.”
8. What should I do if I believe that I’ve been treated in violation of the laws that protect job applicants with cancer? With the above information in mind, these are the six wise steps to consider taking if that has happened to you:
i. It all depends on what may be your “goal.” There are several different “goals” you may choose from. As examples, do you want to resolve what happened to you by (a) respectfully requesting reconsideration, (b) seeking a settlement payment, (c) suing or filing a state or federal complaint against the prospective employer, (d) “educating” the employer so that, hopefully, they will not do this to others, or (f) perhaps simply walking away from it all. I’d suggest you give yourself at least a day or two to think about this question.
ii. Without delay, prepare a detailed, written description of what took place: As soon as you can, sit down and write a very detailed summary of what took place, including by whom, when, where (over the phone or in person or in an email), whether there were any witnesses, etc. Remember that, in these matters or in others, “Specificity yields credibility.” The longer you wait to do so, the less you will remember. Later, if any new thoughts, insights and/or circumstances come to mind, add them to your detailed summary.
iii. Of course, before taking any steps, first wait to see whether you are hired for the job: Before you get upset, or take any action, wait until you receive word from your prospective employer whether or not you will be hired. Since that is the true goal of any job seeker, give the process a chance, even if you have been asked improper questions, or otherwise had your legal rights violated.
iv. Draft up, but don’t yet send, an email to a senior manager – not the interviewer (or other seeming violator – seeking your “goal.” It should be addressed to one or more of the employer’s senior managers. It is not suggested that your email be directed to the interviewer (or other person) who has asked you “illegal questions” or taken “illegal steps,” or otherwise violated the law that protects job applicants currently battling cancer, or with a history of doing so. Nor do I recommend you send your request for resolution to Human Resources, or the employer’s legal staff.
v. Consider a consultation with an experienced employment attorney, who may be able to provide wise counsel on whether you should, or should not, take action seeking a reconsideration. Be cautious if he or she suggest litigation right away, and does not suggest or support your proceeding with a non-adversarial, confidential attempt to resolve. Litigation, in particular, should never be even seriously considered in workplace disputes without a best effort being made to resolve amicably.
vi. Only then should you take action. With all of this data in mind, consider whether to contact the employer and requesting a “second chance” in light of the “irregularities” or “inadvertent errors” during your interview. It is wise to address your concern to a senior manager, and to avoid initially contacting either Legal Staff or Human Resources Staff, and not the person, himself or herself, who seems to have violated the law.
In Summary . . .
Job applicants who are dealing with cancer, or who have a history of cancer, are provided protection from discrimination on that basis. The rules can seem a bit confusing but, upon reflection, they can be boiled down to three: (1) no questions by the employer/interviewer about cancer without the employee volunteering the information first; (2) the only “good reasons” to discuss cancer and its treatments are to determine how the applicant can be helped to do the job, i.e., whether the applicant can perform the necessary job duties, and whether that will require a reasonable accommodation. Once offered the position, (3) the person can be asked to submit to a physical exam by a physician to confirm the most appropriate type of accommodation to consider. If, as a job applicant, you feel aggrieved about how you have been treated relative to cancer, your cancer history, or present treatment and its effects, with the law on your side, don’t fear requesting an appropriate remedy that would mean “resolution” for you.
P.S.: If you would like to speak directly about this or other subjects, Mr. Sklover is available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.] Evenings and weekends can often be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. For those who are battling or have battled cancer, and are now job applicants, the law provides protections that you should know.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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