Even though there have been significant strides in cancer awareness, treatment and survivor rates, people with cancer still experience barriers to equal workplace opportunities. Employees too often face California disability discrimination due to misconceptions about their ability to work during and after receiving cancer treatment.
Yet another example of this was recently reported by The Fresno Bee, which detailed the story of a Tulare woman who is suing her former employer, a ranch and beef company, for allegedly firing her after she took medical leave while undergoing chemotherapy. She had worked at the company for two decades and had been diagnosed with breast cancer.
As our Los Angeles disability discrimination lawyers understand it, plaintiff is alleging a range of civil rights violations under the California Fair Employment and Housing Act, breaches of the state’s Unfair Business Practices Act and wrongful termination.
Cancer Discrimination Lawsuit Details
She began working for the company in 1996. At the time she was diagnosed with breast cancer in May 2017, she was working as a meat trimmer at a packing facility. She took medical leave that July to undergo surgery. A month passed and she tried to return to work. However, the effects of her chemotherapy made it difficult for her to complete every shift. Her physician submitted a note for her to take additional medical leave until May 2018. She was told by a human resources personnel that she would be fired if she couldn’t work for three months. She still moved forward with her request for medical leave. In January 2018 the company fired her. At that time, she still had more than 200 unused sick and vacation hours.
The federal Family and Medical Leave Act gives workers 12 weeks of unpaid leave for serious personal illness or to care for a new child or a close relative who is very ill. The U.S. Fair Employment and Housing Act obligates employers to extend reasonable accommodation to workers with disability, and this includes extended leave. The only exception is if doing so creates an undue hardship, which is determined on a case-by-case basis.
The company denied the employee was wrongly fired and alleged several of her claims were inaccurate. The vice president said the company did not fire the employee; instead, she chose to no longer work for them.
It should be noted that if one is forced to resign because of having complained about illegal workplace conduct (such as discrimination or harassment), that is a form of retaliation that can be the basis of a lawsuit.
Rights of Workers Diagnosed With Cancer
Job applicants and employees with cancer should consult with an attorney if they think their rights under various anti-discrimination laws have been violated. Some points to keep in mind per the U.S. Equal Employment Opportunity Commission:
- An employer may not ask questions about a job applicant’s medical condition or require one to undergo a medical examination before making a conditional job offer. This includes questions about whether one has ever had cancer, is undergoing treatment for cancer or has previously taken leave for cancer treatments. Employers can ask about one’s qualifications related to job performance, such as how much one can lift, whether he/she can travel and one’s ability to work a rotating shift.
- The Americans with Disabilities Act does not require job applicants to disclose whether they have or have had cancer. However, if you voluntarily disclose that information, the employer can ask about what accommodations you might need.
- Employers can ask an employee about cancer when there is a reasonable belief the worker won’t be able to safely perform essential job functions as a direct result. They can also ask about accommodations and verify the worker’s use of sick leave. Employers cannot tell co-workers that a worker is receiving a reasonable accommodation because this violates their responsibility to keep employees’ medical information confidential.
- Reasonable accommodations for cancer patients may include leave to attend doctor appointments and treatments, periodic breaks, a private are to rest or take medications and a modified work schedule. Whether an accommodation is “reasonable” is to be determined on a case-by-case basis, and employers don’t have to grant every request, but should do so unless it will result in significant difficulty or expense.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949-375-4734.