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Thursday, October 12, 2017

Employer Breast Cancer Discrimination Because I Am Female?

Unfortunately, yes, it sometimes happens that an employer illegally discriminates against a woman with breast cancer because of a bias against women in addition to disability discrimination. One of the more common forms of discrimination against a female worker with breast cancer is when the employer will not allow an extended FMLA leave that the employer routinely gives to male employees with cancer. Rising female executives may still have to combat a good old boys' club atmosphere which is hostile to the advancement of woman. Beginning at the top of the corporate structure, this culture undervalues women and may exploit the disabilities of women in attempts to undermine their power, authority and advancement.

It is ironic that while October 1 to October 31, 2017 is National Breast Cancer Awareness month, many women treating for breast cancer, still have to fight for their rights in the workplace. Disabled female workers are correct in assuming that there may be a double bias against them, one for being disabled and another for being female, if their employer refuses them the same type of accommodations for their disability that the employer allows for disabled male employees.

This type of double whammy dose of discrimination against women with breast cancer occurs in all types of employment, from blue collar to high income executive positions. Female employees treating for cancer may be denied equal employment opportunities that are afforded to similarly situated male employees, including development and promotions.

Employers’ firing employees with breast cancer who are on leave receiving treatment is more common than some may realize. A recent such case alleging more than one kind of discrimination was recently filed in California. As reported in the Los Angeles Times, a corporate executive, a female who was head of original programming for a major cable television network, was fired in April while on medical leave for breast cancer. This former high-end female executive, filed a lawsuit alleging gender discrimination and more. 

In her complaint that she filed in Federal Court in California, she alleged that after she was  diagnosed with early stage breast cancer, she continued to work until February 2017, when she began medical leave. She alleges that after she was diagnosed with a second, more severe type of breast cancer that required her to take a longer leave, the company questioned the validity of her diagnosis, suggested she was faking it,  and prevented members of her team from contacting her.   She alleged in her complaint that her former employer "fosters a good old boys' club atmosphere and mentality that are hostile to women and their advancement," and that,  "This misogynistic culture, which marginalizes, demeans and undervalues women, begins at the top of the corporate structure." Her former employer denied her allegations. 

Earlier this year, a global real estate services firm that does business in more than 60 countries agreed to pay out $100,000.00 to settle a case where they had fired a female employee with breast cancer. In this suit, the employee alleged she has worked for this employer for nine years, first hired as an administrative assistant. Then after she was promoted to a senior administrator,  she requested medical leave under the Family Medical Leave Act (FMLA) for her breast cancer treatment. While on FMLA leave, she requested, as a reasonable accommodation, to return to work on a part-time basis while she underwent treatment. She further advised that after her surgery,  she might need additional unpaid leave. She alleged that she was fired because of her breast cancer disability rather than the employer providing a reasonable accommodation,   such as allowing her to work part-time or providing another reasonable accommodation that would have allowed her to remain employed.

The New Jersey Law Against Discrimination (NJLAD) prohibits disability discrimination against women with breast cancer. Both the NJLAD and the ADA  requires employers to provide reasonable accommodations to qualified individuals with disabilities, such as a modified work schedule or unpaid leave, unless doing so would cause a significant expense or difficulty to the employer. For women in New Jersey who have breast cancer,  or for any disabled employee who believes their employer violated their rights because they are disabled, or perceived to be disabled, they can file a lawsuit directly in state court under the NJLAD. New Jersey plaintiffs do not have to go through the longer administrative process required by the ADA before they are allowed to file a disability discrimination lawsuit.

If you live in New Jersey, you do not have to exhaust the more time consuming administrative process required if you file under the ADA. If you live in New Jersey, you can file a lawsuit for disability discrimination against your employer directly in state court by filing under the NJLAD

If you believe you are being discriminated at work because of breast cancer, or your employer denies an extended leave that the employer routinely gives to male employees with cancer, or the employer 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, 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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