Circa 2007
When Mary, 26, requested time off to attend a doctor’s appointment to address complications with her brain-tumor treatment, her employer terminated her.
When Melanie, 37, asked for such accommodations as turning down the heat in the office as she dealt with lungcancer symptoms, she was fired for being “difficult.”
When Robert, who’d enjoyed a successful career before being diagnosed with colon cancer at 57, returned to work after surgery, he was fired the next day.
There are thousands of people like Mary, Melanie and Robert who are willing and able to work, yet are discriminated against because of a health condition. These incidents are exactly the kind of blatant, workplace discrimination that the Americans with Disabilities Act (ADA) was intended to stop, and yet many in their situation have not been protected by the 17-year-old law. This has resulted in devastating consequences for people who are not only battling cancer, but also struggling to stay afloat financially. They are in no condition to look for a new job, and thus face the loss of health insurance, medical care and the roof over their heads. Some are forced to file for personal bankruptcy along the way.
That’s horribly unfair given that more and more people would prefer to remain at work during cancer treatment, and return to work afterwards. In the last six years, the Cancer Legal Resource Center, a joint project of the Disability Rights Legal Center and Loyola Law School, has received over 1,000 calls from people who were fired after disclosing to their employers that they had cancer. That number doesn’t include the thousands of workers who called in concerned about the discrimination they might face if they exercised their right to take time off to undergo treatment, or who were already experiencing health-related discrimination on the job.
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Founded in 1997, the Cancer Legal Resource Center has assisted more than 75,000 people in all 50 states, including those with the disease, their families, their service providers and their employers. Recently, nearly 400 people called for legal assistance in just one month.
In the U.S., there are over 50 million people with disabilities and 11 million people with cancer. The reason many of these people are not covered under the Americans with Disabilities Act of 1990 (ADA) is due to the way the (Some names have been changed to protect the privacy of the individuals) courts have interpreted the law. Intended to give people with disabilities a chance to be treated fairly in society at large, as well as within the workplace, the power of the ADA to protect people with cancer, diabetes, epilepsy and other chronic conditions has been seriously compromised by several Supreme Court decisions.
As a result, individuals are not provided any form of redress, even when they are told explicitly that they are being terminated because of their disease. This is because courts look at a person in their “mitigated” state, which means they don’t consider whether the person is blind without glasses, but whether he or she can see with glasses. So the law generally does not protect those who use medication or assistive devices, such as insulin or glasses, to compensate for their condition.
With new advances in medicine, a person with cancer who is undergoing chemotherapy treatments may take medication that reduces the potential negative side effects of the treatment. If the medication works well, then the person with cancer may not rise to the level of disability established by the Supreme Court. Yet people with cancer still face discrimination because of myths, fears, ignorance or stereotypes.
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Some in Congress are trying to fix this flaw by passing the ADA Restoration Act to protect workers like Robert, Mary and Melanie. Last July, House Majority Leader Steny Hoyer, Representative James Sensenbrenner and Senators Tom Harkin and Arlen Specter introduced the ADA Restoration Act of 2007 to bolster the law so that it is effective and fulfills its original intent.
This legislation would also protect the most vulnerable people with disabilities from blatant discrimination in employment. That would mean people with cancer, epilepsy, depression, diabetes and other chronic disabilities.
The ADA Restoration Act would prevent discrimination against anyone “on the basis of disability,” instead of just preventing discrimination “against an individual with a disability.” In the workplace, it would restore the right to be judged solely on one’s qualifications for the job, which would lift the ADA to where it was originally intended to be—to the level of other civil rights laws.
by Paula Pearlman and Joanna Morales
Joanna Morales is the Director of the Cancer Legal Resource Center at the Disability Rights Legal Center, and Paula Pearlman is the Deputy Director of the Disability Rights Legal Center.
