Lawyer Tells Cancer Patients How to Fight Job Discrimination

NEW YORK--People do not generally think about their civil rights when they get cancer, but they may need them at some point in the workplace, attorney L. Susan Scelzo Slavin, of Slavin Law Firm, Jericho, NY, said during a Cancer Care, Inc. teleconference for cancer survivors.

"Employment discrimination tends to develop over time," she warned. "In the beginning, co-workers rally around, as does the employer. But soon you may need to adjust your work schedule for your chemotherapy, radiation, or surgery, or you may need to take a leave of absence. Then things may start to happen. Maybe you don’t get an expected promotion. They might even move your desk. Later, they may say they have to let you go because you’re a poor employee or business is bad. They never say, ‘I’m firing you because you have cancer.’"

Two bodies of law protect those who have had catastrophic illnesses: the state human rights laws and the federal Americans With Disabilities Act. Ms. Slavin urged her listeners to visualize themselves standing under an umbrella. "You are under the protection of both these laws if you have a disability," she said.

In addition, the federal Family and Medical Leave Act guarantees 12 weeks of unpaid medical leave to people who work for companies with at least 50 employees. Workers can use the leave to care for themselves or a spouse or child.

To be covered by the Disabilities Act, an individual must be able to perform the essential functions of the job. If scheduling changes are needed to allow the person to perform these functions, the law says that an employer must make "reasonable accommodations," unless the employer can prove it would cause undue hardship to the business.

"We advise our clients to tell their employer that they can perform their job functions with a reasonable accommodation, and to explain what they need," Ms. Slavin said. "The employer would rather work with you for a beneficial resolution then wind up in litigation."

Although a large company would probably have workers who could temporarily fill in for a person on medical leave, reasonable accommodation does not require an employer to turn a full-time job into a part-time job, she said. Also, taking workmen’s compensation or even being covered by a long-term disability policy could preclude a person from bringing a job discrimination suit.

People who think they are being discriminated against should keep a log of their work experience, Ms. Slavin advised, and if they are fired because of "poor work," they should not give up hope. "Do not be discouraged. Bosses will always say that, and we always get an opportunity to disprove it at trial." People can take their complaints to state human rights offices without a lawyer, Ms. Slavin said, and then can hire an attorney if this fails to resolve the problem.

When Seeking a New Job

Federal law also protects cancer survivors who are looking for new jobs. During a pre-offer interview, employers are forbidden to ask questions that could elicit a medical response such as: How many sick days did you take last year? Did you ever take workmen’s compensation? What medications are you on?

"You don’t have to tell them you’ve had cancer," Ms. Slavin said. She advised survivors to stick to their qualifications and never fudge things on their resume. "That could cause problems in the future, including hurting their chances of winning any future discrimination suits," she said. If the employer notices a gap in employment, the job seeker should be prepared with an answer: "I was sick. I received treatment, and now I’m fine."