Cancer Disability Discrimination
You have cancer. It’s not your fault. Cancer is considered a disability in the workplace under discrimination law in New York State and New York City, and your employer cannot discriminate against you because of your cancer.
People with cancer may experience discrimination in the workplace in New York, both in hiring and firing. You may undergo cancer discrimination at work because your employer doesn’t understand you are still able to work during and after cancer treatment. Even if you are recovering from cancer treatment, or have recovered, sometimes your employer believes that you are likely to be absent from work or that you won’t focus on your job and will perceive you to be disabled, even though you can get your job done. Even if you have to be absent from work, and you need to take sick leave, there may a good chance that you will recover, and continue to be a productive employee. Don’t give up, even if your cancer is having side effects which for the time being affect your ability to work. Many, if not most, of cancer victims return to work.
Under the 2008 Amendment to the Americans with Disabilities Act, more cancers are being covered. For example, one court found that although renal cancer may not be active all the time, when it is active it may be deemed to substantially limit the major life activity of cell growth. The legislative history of the amendment rejected a prior court finding that a cancer requiring a leave of eight months was too “short term” to be considered a qualifying disability. The new regulations of the Equal Opportunity Commission reject the idea that a cancer in remission is too short-lived to be considered a disability, and courts have begun to follow this interpretation. The regulations also indicate that if you had a diagnosis of cancer ten years ago, and are now in remission, your employer cannot discriminate against you now, because that would be discrimination based on your having a record of a disability, even though it is not currently active. Please note that the Americans with Disabilities Act has not caught up with the New York City Human Rights Law, which has much broader protections for people with disabilities.
You are entitled to a reasonable accommodation for your cancer, and your employer cannot subject you to cancer disability discrimination.
For example, you have to go for radiation treatments, and for a while you suffer from nausea and fatigue. You need to come in late for your treatments, but you offer to work late to finish your work. Occasionally, you may need to take breaks at work when you are suffering from fatigue or nausea. Maybe you have to take some time off from work to recover. You may be entitled to a reasonable accommodation for your cancer. If your employer does not give you a reasonable accommodation, that would be disability discrimination because of your cancer.
Nor can your New York employer subject you to a hostile environment because of your cancer. That would also be a form of disability discrimination. For example, you have a scar on your face after surgery for skin cancer. Your employer fears that this will drive away customers. Your employer begins to make negative comments about your looks, even though you are perfectly capable of interacting with the public. That would be a form of disability discrimination.
Your employer cannot disclose your medical information or records to just anyone. You are entitled to confidentiality in your medical records and information.
If you are afraid to ask for an accommodation, know that your employer cannot retaliate against you for requesting an accommodation. For example, in one case a court found that an employee with a good work record who was fired shortly after asking for leave for cancer surgery was subject to retaliation for requesting a reasonable accommodation.
Contact us online or call us at (212) 949-1001 so that we can review if your New York City employer has subjected you to disability discrimination because of your cancer in violation of law in New York State or New York City.