Your Employment Rights as a Cancer Survivor
Work fulfills a critical financial and emotional need for most cancer survivors. In
addition to providing income and important benefits such as health insurance, employment
also can be a source of self-esteem. Cancer, however, may create barriers to finding
and keeping a job. It can also wreak havoc on the ability to pay bills and to get
adequate health insurance.
Although most employers treat cancer survivors fairly and legally, some employers—either
through outdated personnel policies or an uninformed or misguided supervisor—pose
unnecessary and sometimes illegal barriers to survivors' job opportunities. Some survivors
encounter problems such as dismissal, failure to be hired, demotion, denial of promotion,
denial of benefits, undesirable transfers, and hostility by co-workers. Survivors
can best protect themselves from employment discrimination by learning how to speak
up for their rights in the workplace.
How employment discrimination laws protect cancer survivors
Under federal law and many state laws, an employer cannot treat you differently from
other workers in job-related activities because of your cancer history as long as
you are qualified for the job. You may be protected by these laws only if:
You are qualified for the job (you have the necessary skills, experience, and education)
and you can do the essential duties of the job in question;
Your employer treated you differently from other workers in job-related activities
because of your cancer treatment or history;
At some time your cancer substantially limited your ability to do everyday activities
or your employer thought that your cancer so limited you.
The Americans with Disabilities Act (ADA) prohibits some types of job discrimination
against people who have or have had cancer by employers (who have at least 15 employees),
employment agencies, and labor unions. Additionally, every state has a law that regulates,
to some extent, disability-based employment discrimination. Some laws clearly prohibit
cancer-based discrimination, while others have never been applied to cancer-based
discrimination. State laws also vary as to which employers—public or private, large
or small—must obey the law.
Under federal and most state laws, an employer has the right to know only if you are
able to do the job at the time you apply for it. A prospective employer may not ask
you about your health history. The exception to this is if you have a visible disability
and the employer could reasonably believe that it affects your current ability to
perform that job. An employer may ask you detailed questions about your health only
after you have been offered a job.
Federal law and most state laws require an employer to provide you a reasonable accommodation. An accommodation is a change, such as in work hours or duties, to help you do your job during or after
cancer treatment. Employers can make more than one accommodation. For example, if
you need to take time off for treatment, your employer may accommodate you by letting you work flexible hours until you finish treatment. An employer does
not have to make changes that would be unduly costly or disruptive to the company.
In some circumstances, the family members of cancer survivors may be protected from
discrimination. The Americans with Disabilities Act prohibits discrimination based
on relationship or association with a disabled person. Employers may not assume that your job performance would be affected by your
need to care for a family member who has cancer. For example, employers may not treat
you differently because they assume that you would use excessive leave to care for
your spouse who has cancer. Additionally, employers that give health insurance benefits
to their employees for their dependents may not decrease benefits to an employee solely
because that employee has a dependent who has cancer. State laws, however, do not
protect you if an employer treats you differently because a family member has cancer.
The ADA and many state laws prohibit discrimination based on genetic information relating
to diseases such as cancer. For example, an employer may not ask you for the results
of a genetic test or treat you differently because of your genetic history.
You also may have the right to take medical leave under your employer's policies,
a state law, or federal law. The Family and Medical Leave Act (FMLA) is a federal
law that requires employers with 50 or more employees to provide up to 12 weeks of
unpaid, job-protected leave for family members who need time off to address their own serious health condition (which includes most cancers) or in order to care for a seriously ill child, parent,
spouse, or a healthy newborn or newly adopted child. An employee must have worked
at least 25 hours per week for one year to be covered and must make reasonable efforts
to schedule foreseeable medical care so as to not to unduly disrupt the workplace.
An employer must continue to provide benefits—including health insurance—during the
The ADA does not require employers to provide health insurance. The ADA and some state
laws, however, do require those employers who offer health insurance to do so fairly.
For example, if your employer gives health insurance to all employees with jobs similar
to yours, but does not give you health insurance, then the employer's refusal may
be considered discrimination under the Americans with Disabilities Act. The employer
must prove that the failure to give health insurance is based on legitimate actuarial
data (statistics) or that the insurance plan would suffer serious financial problems.
For example, if your employer is a small business that can prove it is unable to get
an insurance policy that will cover you, the employer may not have to give you the
same health benefits given to your co-workers.
Every state has laws that regulate the insurance industry. For example, some states
forbid insurance companies from considering your cancer history when issuing a new
policy. Contact your state insurance commissioner regarding your state law rights.
Additionally, if you have health insurance through a group plan at work, one federal
law—ERISA—prohibits your employer from firing you to prevent you from collecting your
How to avoid discrimination
Lawsuits are neither the only nor necessarily the best way to fight employment discrimination.
State and federal anti-discrimination laws help cancer survivors in two ways. First,
they discourage discrimination. Second, they offer remedies when discrimination does
happen. These laws, however, should be used as a last resort because they can be costly, time-consuming, and do not necessarily result in a fair
solution. The first step is to try to avoid discrimination. If that fails, the next
step is to attempt a reasonable settlement with the employer. If informal efforts
fail, however, a lawsuit may be the most effective next step.
If you are looking for a new job, you can take several steps to lessen the chance
that you will face discrimination because of your cancer history.
Do not volunteer that you have or have had cancer unless it directly affects your
qualifications for the job. An employer has the right—under accepted business practices and most state and federal
laws—to know only if you can perform the essential duties of the job.
Do not lie on a job or insurance application. If you are hired and your employer later learns that you lied, you may be fired for
your dishonesty. Insurance companies may refuse to pay benefits or cancel your coverage.
Federal and state laws that prohibit employment discrimination do not guarantee that
all employers will refrain from illegally asking survivors about their cancer histories
or gaps in education or employment. If you are asked a question that you think is
illegal, give an honest (and perhaps indirect) answer that emphasizes your current
abilities to do the job.
Keep in mind your legal rights. For example, under the Americans with Disabilities Act, an employer may not ask about
your medical history, require you to take a medical exam, or request medical records
from your healthcare provider before making a conditional job offer. Once an employer
has made a conditional job offer, the employer can require you to submit to a medical
exam only if it is required of all other applicants for the job. The medical exam
may consider only your ability to perform safely the essential duties of that job.
Keep the focus on your current ability to do the job in question. Employers may not ask how often you were absent from past jobs, but they can ask
if you can meet the employers' current attendance requirements.
Apply only for jobs that you are able to do. It is not illegal for an employer to reject you for a job if you are not qualified
for it, regardless of your medical history.
If you have to explain a long period of unemployment during cancer treatment, if possible,
explain it in a way that shows your illness is past and that you are in good health
and are expected to remain healthy. One way to de-emphasize a gap in your school or work history because of cancer treatment
is to organize your resume by experience and skills, instead of by date.
Offer your employer a letter from your healthcare provider that explains your current
health status, prognosis, and ability to work. Be prepared to educate the interviewer about your cancer and why cancer often does
not result in death or disability.
Seek help from a job counselor or social worker with resume preparation and job interviewing
skills. Practice answers to expected questions such as, "Why did you miss a year of work?"
or "Why did you leave your last job?" Answers to these questions must be honest, but
should stress your current qualifications for the job and not past problems, if any,
resulting from your cancer experience.
If you are interviewing for a job, do not ask about health insurance until after you
have been given a job offer. Then ask to see the benefits package. Prior to accepting the job, review it to make sure it meets your needs. For more
information on how to choose an insurance plan, see "What Cancer Survivors Need to
Know About Health Insurance," published by the National Coalition for Cancer Survivorship.
If possible, look for jobs with large employers because they are less likely than
small employers to discriminate.
Do not discriminate against yourself by assuming that cancer leaves you unable to
work. Although cancer treatment leaves some survivors with real physical or mental disabilities,
many survivors are capable of performing the same duties and activities as they did
prior to diagnosis. With the help or your medical team, make an honest assessment
of your abilities compared with the mental and physical demands of the job.
How to enforce your legal rights
If you suspect that you are being treated differently at work because of your cancer
history, consider an informal solution before leaping into a lawsuit. You want to
stand up for your legal rights without casting yourself as a troublemaker.
If you face discrimination, consider the following suggestions:
Use your employer's policies and procedures for resolving employment issues informally.
If you need some kind of accommodation to help you work, such as flexible working
hours to accommodate healthcare providers' appointments, suggest several alternatives
to your employer.
Educate employers and co-workers who might believe that people cannot survive cancer
and remain productive workers.
Ask a member of your healthcare team (healthcare provider or social worker) to write
or call your employer to offer to mediate the conflict and suggest ways for your employer
to accommodate you.
Seek support from your co-workers.
If informal solutions fail, consider several steps to protect your right to file a
Keep carefully written records of all job actions, both good and bad.
Pause before you sue. Carefully evaluate your goals. For example, do you want your job back, a change in
working conditions, certain benefits, a written apology, or something else? Consider
the positive and negative aspects of a lawsuit. Potential positive aspects include
getting a job and monetary damages, protecting your rights, and tearing down barriers
for other survivors. Potential negative aspects include long court battles with no
guarantee of victory (some cases drag on for five years or more), legal fees and expenses,
stress, a hostile relationship between you and the people you sue, and a reputation
in your field as a troublemaker.
Consider an informal settlement of your complaint. Someone such as a union representative, human resources or personnel officer of your
company, or a social worker may be able to assist as a mediator. Your state or federal
representative or local media may help persuade your employer to treat you fairly.
Keep in mind that the first step most government agencies and companies take when
they receive a complaint is to try to resolve the dispute without a costly trial.
Be aware of filing deadlines so you do not lose your option to file a complaint under
state or federal law. You have 180 days from the date of the action against you to file a complaint under
the ADA with the United States Equal Employment Opportunity Commission. If you work
for the federal government, you have only 45 days to begin counseling with an equal
employment opportunity counselor. Under most state laws, you have 180 days to file
a complaint with the state agency. If you file a complaint and later change your mind,
you can drop the lawsuit at any time. To file a lawsuit, you must follow the procedures
established by each law.
ADA. If you believe you have been treated differently by an employer covered by the Americans
with Disabilities Act because of your cancer history, you must file a complaint with
the Equal Employment Opportunities Commission (EEOC) to enforce your rights. To get
the location of your regional EEOC office, call the EEOC Public Information System
in Washington, DC at 1-800-669-4000. You can get publications from the EEOC that explain
the Americans with Disabilities Act and how to enforce your rights under the law by
FMLA. To file a lawsuit under the Family and Medical Leave Act, you may choose between filing a lawsuit in court or filing a complaint with the Employment
Standards Administration, Wage and Hour Division of the United States Department of
Labor. For information about the Department of Labor office closes to you, call 1-866-4USWAGE.
Most complaints filed with the Wage and Hour Division are resolved informally.
State laws. Most states have a state agency that enforces the state fair employment practices
law. Some states permit you to file a lawsuit in state court to enforce your rights.
For more information about the laws in your state, contact your state division on
civil rights or human rights commission, or an attorney who is experienced in job
discrimination cases. The EEOC Public Information System at 1-800-669-4000 can help
you locate the appropriate state enforcement agency. Also check your local telephone
book under "State Government."
Even if your legal rights were violated, there is no guarantee that a public agency
or court will give you a fair remedy. A trained job counselor, social worker, nurse,
or clergy may help you deal with the personal issues that result from employment discrimination
due to your cancer history.
You can learn more about your employment rights and cancer survivorship from The National
Coalition for Cancer Survivorship:
1010 Wayne Avenue, Suite 315
Silver Spring, MD 20910
You can learn more about your employment rights and other basic skills to meet challenges
posed by a cancer diagnosis from the Cancer Survival Toolbox. The Toolbox is a free set of audio programs developed by the National Coalition for Cancer Survivorship,
Oncology Nursing Society, and Association of Oncology Social Work. The CDs, which
are available in English and Spanish, cover:
Standing Up for Your Rights
Topics for Older Persons
Finding Ways to Pay for Care
The Toolbox can be found at: http://www.canceradvocacy.org/toolbox/
© 2000 by the National Coalition for Cancer Survivorship