by Dana Hess, Civil Rights Investigator, Washington State Human Rights Commission
One in three persons will be diagnosed with cancer in his or her lifetime. More than 10 million people in the United States are living with cancer. Additionally, more than 1.3 million persons in the U.S. will be diagnosed with cancer this year. Sixty-five percent (65%) of adults diagnosed with cancer today will be alive five years from now. And the large majority of these persons are employed when diagnosed, undergoing treatment, and after treatment ends.
As employees, a person with cancer (or who had cancer) is, in most cases, considered "disabled" under federal and Washington law and is protected by the American with Disabilities Act (ADA) and the Washington Law Against Discrimination (WLAD). An employer must accommodate an employee's condition when the impairment is "known or shown through an interactive process to exist in fact," and the impairment has a substantially limiting effect on one of the following:
The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles or they may be procedures or rules (such as rules concerning when work is performed or when breaks are taken). Reasonable accommodation removes workplace barriers for individuals with disabilities.
For more information see the newly released Breast Cancer Legal Resources Guide at: http://www.wsba.org.
Q. What protections does the Americans with Disabilities Act provide in regards to employment?
The Americans with Disabilities Act (ADA) is the most comprehensive civil rights legislation adopted to prohibit discrimination against people with disabilities. Public and private businesses, state and local government agencies, private entities offering public accommodations and services, transportation and utilities are required to comply with the law. The ADA was signed into law in 1990, extending civil rights protections to individuals with physical or mental disabilities in the area of Employment (Title I).
Title I of the Americans with Disabilities Act requires employers of 15 or more employees to provide an equal opportunity to qualified individuals. It prohibits discrimination in various aspects of employment. Title I restricts employers from asking applicants about health conditions before a job offer.
Title I of the ADA further discusses discrimination and requires employers to make reasonable accommodations. Employers are obligated to provide accommodations to the known physical or mental limitations of applicants or employees that are due to the disability. This means that employees might be obligated to tell the employer about the disability and how it limits functioning in order to receive accommodations.
In addition, employers are not required to provide accommodations to employees who are not qualified, that is, unable to perform the essential functions of the job with or without reasonable accommodations. What this means is that employers are not obligated to hire unqualified applicants nor keep employees who cannot perform the skills needed to do the main parts of the job.
Who is responsible for enforcement of Title I?
The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA. Complaints under Title I must be filed with the EEOC within 180 days of the date of the discrimination, or 300 days if the charge is files with a designated State or local fair employment practice agency. Lawsuits can only be filed in Federal court after an individual has received a 'right to sue' letter from the EEOC. To locate an office, look under the U.S. Government in the telephone directory, or call (800) 669-4000 (voice) or (800) 669-6820 (TDD).
Employers can get free technical assistance and information about how to accommodate a specific employee with a disability by contacting the Job Accommodation Network to identify other organizations offering information and technical assistance.