Discrimination

Job discrimination can spell economic catastrophe for cancer survivors because most health insurance is obtained from employment. Under federal law, and many state laws, an employer who is covered by the relevant law cannot treat a survivor differently from other employees because of a history of cancer except in certain circumstances involving health, life, and disability insurance.

Discrimination can take many forms, often appearing in subtle remarks or practices rather than the anticipated overt forms, which most often come to mind when we think of the issue. In my case, I found myself in a seemingly "safe" situation—a supervisor with an MD, no need to mention my history, etc. Yet things began to change after I revealed my history of cancer during a brief illness related to my lack of a spleen. Since then, I have frequently been called at home or transferred to her line upon calling in sick for close questioning about my symptoms, conversations with my hematologist, tests run or not run, medications, and other personal matters which I feel extremely uncomfortable discussing with someone whom I consider a business colleague.

Despite fantastic performance evaluations and award nominations, since a longer absence for a more severe infection a few months ago and my decreased willingness to answer her questions, I have been increasingly criticized, often for seemingly irrelevant matters. Because of the increasingly hostile environment, I'm currently seeking other employment.

I would highly recommend to other survivors that they document everything--details of interview processes, comments about performance, exact hours worked, etc., as the documentation I've had has helped me in this nightmarish situation. In my next job, I don't plan to reveal my history unless absolutely forced to do so, and then I plan to back the discussion with some solid positive evidence on how irrelevant it is to my work.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) prohibits many types of job discrimination by employers, employment agencies, state and local governments, and labor unions. In addition, most states have laws that prohibit discrimination based on disabilities, although what these laws cover varies widely.

The Americans with Disabilities Act of 1990 prohibits discrimination based on actual disability, perceived disability, or history of a disability. Any employer with fifteen or more workers is covered by the ADA.

The ADA requires that:

• Employer may not make medical inquiries of an applicant, unless one of the following situations applies:
  • Applicant has a visible disability, e.g., amputation
  • Applicant has voluntarily disclosed his cancer history
• Such questions must be limited to asking the applicant to describe or demonstrate how she would perform essential job functions. Medical inquiries are allowed after a job offer has been made, or during a pre-employment medical exam.
• Employer must provide "reasonable accommodations" unless it causes undue hardship. An accommodation is a change in duties or work hours to help employees during or after cancer treatment. An employer does not have to make these changes if they would be very costly, disruptive, or unsafe.
• Employer may not discriminate because of family illness. For instance, if an employee has a child who has cancer, the employer cannot treat the employee differently because she thinks the employee will miss work or file expensive health insurance claims.
• Employer is not required to provide health insurance, but if they do give health insurance, they must do so fairly to all employees.

The Equal Employment Opportunities Commission (EEOC) enforces Title 1 (employment) of the ADA. Call (800) 669-4000 for enforcement information and (800) 669-3362 for enforcement publications. Other sections are enforced by, or have their enforcement coordinated by, the U.S. Department of Justice (Civil Rights Division, Public Access Section).

I've been blind since I was 2 and am now in my 40s. I've been lucky in that I've never encountered any major obstacles that warrant using the laws. I think they are good laws. But I feel the biggest obstacle is dealing with the public's attitudes.

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In 1974, I had just finished my masters in library science and I was barely 2 years post-treatment for Hodgkin's. They were very explicit that I was too ill to work as a librarian because of my cancer history. In those days they actually sent you for a physical exam. I remember the doctor saying I had impaired pulmonary function, and he felt I should be sitting back and resting. It was the first I heard of it.

After a good cry, I got very angry and called the assistant county librarian, who I knew really wanted to hire me (she thought I was a firecracker!) and then the ACLU. A lawyer from the ACLU did call me back, and I cried for an hour or more, and I don't remember much of what he had to say. Then the library called me back and said that the assistant county librarian "had kicked some butt" and I could start work on Monday.

In Canada, the Canadian Human Rights Act provides essentially the same rights as the ADA. The act is administered by the Canadian Human Rights Commission. You can get further information by calling the national office at (888) 214-1090 or (613) 995-1151.

When my son was in a wheelchair it really opened my eyes about disability issues because there was no park in our large city that was accessible to him. He couldn't go into the sports arena for baseball or football games, and we had to really check out class field trips to make sure that an elevator was available. Now I look at every building that I enter with new eyes. But things are really improving. Now hearing-impaired people can use headsets in the movie theaters. They have started adaptive swimming lessons and are planning T-ball and other programs for disabled kids.

If you feel that you have been discriminated against due to your disability or a relative's disability, contact the EEOC or the Canadian Human Rights Commission promptly. In the U.S., a charge of discrimination generally must be filed within 180 days of when you learned of the discriminatory act. Although you do not need an attorney to file a complaint, an attorney experienced in job discrimination can help you draft the complaint to make it more likely to be successful.

Despite two episodes of discrimination, I have gone through life sort of blithely telling people about my history because it is so much a part of who I am. Since I was diagnosed at 21, being a survivor marks who I am as an adult. I can't separate out the person I am now from the life events that have shaped me. And battling and surviving Hodgkin's disease was in many ways a major influencing factor in my adult life. So for better or worse, I don't hide the fact from people and overall I would say most have been very accepting and kind, a few have gone out of their way to help me, finding me (much to my amazement) courageous and strong. Only a few have stood in my way, fearful of my history and past.

The Federal Rehabilitation Act

The Federal Rehabilitation Act bans public employers and private employers that receive public funds from discriminating on the basis of disability. The following employees are not covered by the ADA, but are by the Rehabilitation Act:

• Employees of the executive branch of the federal government. (Section 501 of the Rehabilitation Act)
• Employees of employers who receive federal contracts and have fewer than fifteen workers. (Section 503 of the Rehabilitation Act)
• Employees of employers who receive federal financial assistance and have fewer than fifteen workers. (Section 504 of the Rehabilitation Act)

If you are a federal employee (Section 501), you must file a claim within 30 days of the job action against you. If you are an employee whose employer has a federal contract (Section 503), you must file a complaint within 180 days with your local Office of the US Department of Labor, Office of Federal Contract Compliance Programs. If your employer receives federal funds (Section 504), you have up to 180 days to file a complaint with the federal agency that provided funds to your employer, or you can file a lawsuit in a federal court. The Federal Rehabilitation Act is enforced by the Civil Rights Division of the Department of Justice, (202) 514-4609.

When I applied to graduate school in 1979, I was rejected. This was 7 years after treatment, and I was too dumb to protest. Two years later the same graduate program did admit me.

I hate this sort of stuff. It is all too common and most often quite hidden so we never get the full story. I only know about the grad school because a friend was on the admission committee. She told me that they wouldn't give one of their precious spots to someone they thought might die. Otherwise I would never have known.

Family and Medical Leave Act

In August 1993, the Family and Medical Leave Act (FMLA) became federal law. FMLA protects job security of workers in large companies who must take a leave of absence to care for a seriously ill child, take medical leave because the employee is unable to work because of his or her own medical condition, or for the birth or placement of a child for adoption or foster care. An employee must have worked 25 hours per week for 1 year to be covered. The Family and Medical Leave Act:

• Applies to employers with 50+ employees within a 75-mile radius.
• Provides twelve weeks of unpaid leave during any twelve-month period to care for seriously ill self, spouse, child, or parent. In certain instances, the employee may take intermittent leave, such as reducing his or her normal work hours.
• Requires employer to continue to provide benefits, including health insurance, during the leave period.
• Allows leave when a health condition renders employee unable to perform the functions of the position.
• Requires employee to make reasonable efforts to schedule leave so it will not disrupt the workplace.
• Requires employer to return employee to the same or equivalent position upon return from the leave. Some benefits, such as seniority, need not accrue during periods of unpaid FMLA leave.
• Requires employee to give 30-day notice of the need to take FMLA leave when the need is foreseeable.

FMLA is enforced by complaints to the Employment Standards Administration, Wage and Hour Division, U.S. Department of Labor, or by private lawsuit. The nearest office of the Wage and Hour Division may be located by looking in the U.S. Government pages of your telephone directory. You have up to 2 years to file a FMLA complaint or a lawsuit.

The District of Columbia and almost all states have laws banning discrimination against people with disabilities. The type of protection varies from state to state. For information on your state laws, contact the state agency that enforces employment rights, the local bar association, the National Coalition for Cancer Survivorship, or your state chapter of the American Cancer Society. To file a complaint under state law, contact your state division on civil rights or human rights division, or call the EEOC Public Information System at (800) 669-4000.

For more detailed information on laws governing insurance and jobs, read A Cancer Survivor's Almanac, edited by Barbara Hoffman, JD, or contact the National Coalition for Cancer Survivorship.

I am going to have surgery soon, and expect to be off work for 8 weeks. My business has no provision for medical leave of absence, but I have disability insurance through the Canadian government. So I don't have to quit, just go on medical disability. My boss is very understanding, so I won't have any problems.