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:
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