“Does what happened to me sound like a Disability Discrimination and Retaliation claim under federal law?”

Question: For 35 years I have worked for a major utility company. I did not call in sick one day in over 28 years. A year ago, I was diagnosed with Stage 2 colon cancer, and underwent chemotherapy. When my cancer went into remission, I returned to work.

Recently, though, my colon cancer came back as Stage 4. So that I could go to my oncologist, receive chemotherapy and work I requested an accommodation: starting work early (6:00 am) and leaving early (1:30 pm). Without taking my breaks, this would make my day a full eight-hour day. I was turned down.

All of a sudden, after 35 years, I went from a Superior job evaluation (prior to getting ill) to being told on my latest job evaluation that I don’t even know my job.

I wear a portable chemotherapy pump, which my manager calls “lighter fluid.”

I am now being denied the opportunity to work overtime, constantly having my jobs put under special scrutiny, and other such things.

I filed a complaint with the federal Equal Employment Opportunity Commission (“EEOC”) about violations of the Americans with Disabilities Act (“ADA”), which is currently being investigated. My manager keeps threatening me that he would like to see that complaint just “disappear.”

Does it sound like I have a good claim of Disability violation, and retaliation?

Harrison, New York

Answer: Steve, from what you have written, while it sure sounds like your employer has been mean to the point of cruelty, (a) I am not certain that you have a claim under the Americans with Disability Act (“ADA”), but (b) it does sound very much like you have a claim of illegal retaliation under that same law. 

(aFirst, under the ADA law, you must be legally “Disabled.” I do not for a moment mean to minimize your cancer and its effect on your life, but the Americans with Disabilities Act (often called the “ADA”) provides significant legal protections only to people who suffer from “disabilities” as the law defines that word. “Disability” is defined in the law as “a physical or mental impairment that substantially limits one or more major life activities” or a person may be “regarded as having such impairment.” That means, generally, a limitation on your ability to walk, see, hear, talk, eat, breathe, etc. Though it may sound very unfair, “illness” is not the same as “disability.” So, having cancer, even late-stage cancer, is not necessarily a disability, but rather a serious illness. Can cancer result in a disability? Yes. I can’t tell from what you have written whether, in your case, it has. I think it is likely the EEOC is looking into that particular issue at this time, as well as whether you may be perceived to suffer from a disability.

(bSecond, under the ADA law, a “Reasonable Accommodation” must be made. Was your request “reasonable?” I can’t tell from what you’ve written. The reasonableness of any requested accommodation depends on many factors, including how critical your work is, the size of your employer, whether your work might affect public health and safety, and many other factors. I think it is also likely that the EEOC is looking into this issue, as well. 

(cThird, the ADA law expressly prohibits Retaliation against an Employee who files a complaint under the law. Retaliation requires three elements: (1) the employee must be a “protected” individual or engaged in a “protected activity”; your filing an ADA complaint satisfies this; (2) the employee has been negatively impacted; I think your all-of-a-sudden negative performance review, denial of overtime, and your chemo pump being called “lighter fluid” likely satisfy this element; and (3) element #2 must have been “caused” by element #1; your manager’s comment seems to prove that.

For these reasons, you seem to have a strong case of illegal retaliation, but I cannot opine on the strength of your case of illegal discrimination. By the way, it is entirely possible that, even where a person is found to be not disabled, that same person can be a victim of retaliation for having filed an ADA complaint.

If you believe you may have been retaliated against, to obtain a Model Letter you can use to File A Complaint of Retaliation with Your employer, simply [click here].

(dFourth, the EEOC encourages employers and employees to “mediate” their differences, and will even provide a mediator at no expense. It is extremely rare to have the EEOC take up your case as your advocate; much more likely, they will simply issue to you a “Right to Sue” letter, which permits you to sue in Federal Court.  I don’t know if you are aware of it, but your “case” can sometimes be resolved without having to go to court by means of a mediator provided by the EEOC. If your employer is willing to participate in a mediation, this is something to seriously consider. If you would like to know more about the process of mediation, I have written an article about it. Simply [click here]. 

(eFifth, it may be time to consider hiring an attorney, if you have not already. If you don’t yet have an attorney, you should now consider hiring one. If you go into mediation, you can engage in the process without an attorney; there are advantages and disadvantages to “going alone” in mediation. But if you or your employer do not want to mediate, or if you mediate but do not reach a settlement, you will soon need to hire an attorney to move forward into court. I don’t think any person should go into court without an attorney. If you would like to obtain an experienced employment attorney in your area, your local bar association referral service is a good place to start.

(fSixth, and finally, you may want to consider taking a Family Medical Leave Act leave of absence. If you need time to care for your health and your employer is not accommodating you, you may want to consider taking leave under the Family Medical Leave Act (FMLA). The FMLA provides you with the opportunity to take time off to care for your health and at the same time, protect your job. It is considered “protected leave” under the law. To view our Special Issue: The Family Medical Leave Act (“FMLA”) – The 50 Things You May Need to Know [click here].

The first step in taking a FMLA leave of absence is simply requesting the forms and information from your employer. If you need assistance in making this request we offer a model letter to send to Human Resources to get the process started.

To purchase our Model Letter Job Issues 10: “Model Memo Asking for FMLA Information” [click here].

Hope this is helpful. You will be in my prayers for a speedy and complete recovery.

Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

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