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Thursday, December 15, 2016

Cancer Discrimination Can Take Many Forms: Failure to Accommodate, Denial of Opportunities for Training and Promotions, and Outright Harassment.

Cancer survivors and those in treatment are entitled to reasonable accommodations at their workplace to allow them to remain employed. Cancer survivors and those in treatment should not have to suffer discrimination at work and numerous state and federal laws prohibit discrimination against an employee who had or has cancer, or are perceived as having cancer.

This firm has successfully represented cancer survivors, both private and  public employees. To persons diagnosed with cancer, treating for it, or having survived it and returned to work, don’t give up! The law is on your side for an employer to make reasonable accommodations that will allow you to remain employed. 

Reasonable Accommodations to Remain Employed

An employee who has cancer should request a reasonable accommodation from their employer that will allow them to remain employed if that accommodation is necessary. What is “reasonable” is not strictly defined in statute, but case law has defined “reasonable” as an accommodation that would not impose an undue hardship on the employer or that would not result in significant expense or difficulty in running the business. I have successfully represented persons with cancer for fifteen years and found that failures to accommodate is one of the main types of discrimination that cancer patients face.

A reasonable accommodation in some instances for those employers and employees who are covered under the FMLA,  may be extending the 12 week leave allowed under the FMLA to a longer period of leave if the person needs to remain out of work longer for treatment.

Other accommodations that have been found to be reasonable are:

• a change of the employee work schedule to allow the person more time for treatment and/or rest; this could be a change of the days or hours when appropriate;

• a change of  break schedule;

• allowing the employee  to work from home if possible;

• allowing the person to take breaks for rest that are not on a schedule but as need arises;

• change of the room environment and/or furniture to accommodate a disability, such as a change of desk or chair;

• if the person is temperature sensitive due to chemotherapy or other treatment, setting the thermometer differently;

• allowing the person to return to work and be allowed subsequent time off for therapy and doctor’s visits.

Not all requests by the employee for an accommodation have to be granted. It is not required that the employer must eliminate an essential function of the person’s job description, when that person can no longer perform that essential function with or without a reasonable accommodation. 

If a person can no longer perform to the standards of the employer with or without a reasonable accommodation, the employer does not have to lower the standards when the standards are consistent with a bonafide business purpose when the standards are fairly applied to all employees.

Persons out on cancer leave should take note that an employee’s failure to communicate with the employer while out on cancer leave, especially when the employee does not return after the anticipated date of return,  could be considered job abandonment in some instances. 

Every situation is different and people may not know how long their treatments and therapies will be needed, or exactly how much time off  they will require to get well. An employer cannot automatically deny a request for cancer leave simply because the person does not have a fixed date of return to work. It is important however for the employee to remain in regular communication with the employer to inform them of their status and provide updates as to when they think they will be released by their doctors to return to work.

It is illegal under the Americans with Disabilities Act and the New Jersey Law Against Discrimination for an employer to refuse to make a reasonable accommodation for an employee with cancer to allow the person to remain employed.

Denial of Opportunities for Training and Promotions

Persons who have had a cancer are often perceived as no longer being appropriate for training and  promotions, as though they are tainted or have lost their ability to excel. This is not exactly a subtle form of discrimination and is quite cruel. If you find you returned to work after cancer and your employer has taken you off the track for success and promotions, no longer includes you in essential business meetings, lunches and functions, no longer pays for seminars or offers you the advancement training that you are are able and desire to to do, your employer may be illegally denying you opportunities for training and promotions.

Outright Harassment

As hard as it may be for many to believe, harassment of persons with cancer can also be shockingly overt as in a case that was recently settled December 12, 2016 by the colossal retail chain, Wal-Mart Stores Inc. In that case, it was alleged that a co-worker harassed the person with cancer, calling her a “cripple” and “chemo brain.” 

In a  press released issued by the EEOC, the Federal agency charged that Walmart unlawfully failed to provide reasonable accommodations to a cancer survivor and allowed harassment of her at one of its Illinois’ Stores.  In this matter it was charged that Walmart  failed to accommodate the employee,  a cancer survivor who  physical limitations, but who could resume work if she had been guaranteed reasonable accommodations, and that Walmart failed to protect her from mocking by another employee because of her cancer, a harassment based on her disability. 

Walmart Stores Inc. will now pay her $75,000 to settle the disability discrimination lawsuit.  In this matter the cancer survivor, a woman, returned to work and she requested an accommodation in the form of a chair and a modified work schedule. These requests were for simple, effective and inexpensive accommodations to allow her to work.

It was alleged that Walmart refused her accommodations in at least two ways: First  the employer did not ensure that a chair was in her work area. Instead they told her  that she, herself,  had to haul a chair from Walmart’s furniture department to her work area. This was  a task that was difficult for her, given her disability. Second, while the employer initially allowed her the reasonable accommodation with a modified schedule, it later revoked the accommodation, discontinuing it without giving her a reason.

If you believe you are being discriminated at work because of cancer, or your employer denies your returns to work or fails to provide a reasonable accommodation to allow you to remain employed, it is important for you to consult with an experienced employment law attorney. I am an aggressive and compassionate employment law attorney who is experienced in representing private and public employees with cancer.

If you are being subjected to such unlawful workplace discrimination or retaliation, please contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.


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