Disability Discrimination

This Article updates the Thursday, October 12, 2017, post, “Employer Breast Cancer Discrimination Because I Am Female?” which described the case of a corporate executive, a female who was head of original programming for a major cable television network, was fired in while on medical leave for breast cancer.

Sometimes 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 or another type of accommodation that the employer routinely gives to male employees with cancer.

It comes as a surprise to many that the Family Medical Leave Act (FMLA) which grants family and temporary medical leave under certain circumstances, does not apply to all employers and that not all employees are covered under the Act.

Which Employers Are Required to Give FMLA Leave?

For the FMLA to apply, the employer, if a private employer, must have 50 or more employees. Private employers with fewer than 50 employees are not covered by the FMLA, but may be covered by state family and medical leave laws.

However, if you are an employee for a government agency, including elementary and secondary schools, local, state and government agencies, the FMLA applies to all such employers, regardless of the number of employees.

If My Employer Has over 50 Employees, Does That Mean I Will Be Allowed FMLA Leave?

Persons have come to me assuming that if they work for a large employer, they will automatically be entitled to leave under the federal Family Medical Leave Act (FMLA).

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.

A recent Federal case in Florida underscores the importance of an employer doing a thorough investigation. In Axel v. Fields Motorcars of Florida, Inc., No. 8:15-cv-893-17JSS (M.

If you are fired or discriminated against at work for being overweight or underweight, whether or not your employer is violating the law depends on whether the employer is applying standards that illegally discriminate against a class of employees that is protected by law, such as based on sex, disability, pregnancy, etc. Persons who are dangerously overweight, i.e., morbidly obese, and those underweight who have anorexia have a disability that gives them a protected status. If you are such a person and are being discriminated against, you should not sit on your rights.

It comes as little surprise to many,  that employers often hand out their pink slips at the end of December. While this may seem to be emotionally the worst time of year to inform workers that they no longer have a job, it does not make it any more illegal than at any other time. It is only significant if employer applies an illegal basis, such as age,  when choosing which employees will be let go and which will remain. Age must be a bona fide occupational qualification for an employer to have a rule mandating retirement at a specified age.

If you are an older employee and the year-end pink slips were disproportionally given to the older workers such as yourself, the employer might be illegally discriminating.

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.

NJ State and Federal law prohibit discrimination against an employee because of the employee’s associations with a disabled person. An employer may not discriminate against you because of your association with a disabled person, or a person who is merely perceived to be disabled, if not in fact disabled. This protection applies not only to permanent and full-time employees but also to part-time and temporary workers. 

The disabled person need not be a relative of the employee; he/she could be a roommate, a friend or other associate. This protected category is known as associational disability discrimination.

As stated earlier on this site, if you work for a private employer you may not sue your employer for violating your free speech rights under the First Amendment of the U.S. Constitution ( not to be confused with individual state constitutions) which establishes limits only on the government’s infringement of speech rights but not on a private employer’s curtailing of speech of its employees.

The  U.S.

​Many State and Federal laws cover whether if it is legal for an employer to fire an employee who is out of work due to medical reasons. The Family Medical Leave Act (FMLA) allows employees who are covered under the statute to have 12 weeks of unpaid sick/disability leave if they work for a covered employer. Whether or not the employer is one who must adhere to the FMLA, a “covered employer”, is dependent on a number of statutory factors including the number of employees. Even if the employer is a covered employer, not all employees who work for the employer and go out on medical leave, are “covered” employees who would otherwise be entitled to the 12 weeks of leave. But even if the FMLA does not apply in the case of an individual employee, there are other laws that might apply.