Your Rights and Protecting Your Interests When Facing Cancer Discrimination
You have the right in California to undertake your job free from being the victim of harassment and discrimination. This includes the ability to work without being improperly discriminated against because of a health issue. If you’ve found yourself harassed or discriminated against after a cancer diagnosis, you need to understand what steps you need to take to protect your legal rights and interests.
Laws that Protect you Against Workplace Discrimination
There are several anti-discrimination laws that protect the rights of employees and job applicants. Workplace discrimination is addressed in both California and federal law.
The California Fair Employment and Housing Act(FEHA), as well as the federal Americans with Disabilities Act(ADA), provides a scheme of important legal protections for workers, including those afflicted with a disease like cancer.
If you have been discriminated against because you were diagnosed with cancer, these laws protect your right to seek and obtain a remedy. As soon as you suspect that you are being treated differently because of your medical condition, you seriously should consider consulting a cancer discrimination attorney like a member of the legal team at Eldessouky Law. You can reach our firm right now by calling (714) 409-8991. Our caring, experienced, tenacious legal team can assist you in pursuing a cancer discrimination claim.
Protections Against Cancer Discrimination
Employees with cancer are protected persons under both FEHA and the ADA. Both laws protect individuals with a physical or mental disability from discrimination. They also protect individuals with a qualifying medical condition.
Cancer is specifically covered under qualifying medical conditions in both laws. The laws provide that to qualify under the protected medical condition threshold, it must be shown that the person seeking to make the claim has:
- Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer
- Genetic characteristics inducing gene/chromosomal conditions or inherited health conditions
Under FEHA, the protection also extends to employees with any health impairment related to or associated with a diagnosis of cancer. This would apply if that person has been rehabilitated or cured, based on competent medical evidence.
There is no need for a person to file a cancer discrimination case to show that the disability limits major life activity. This is only required for physical and mental disabilities.
When Cancer Discrimination Occurs
Cancer discrimination occurs when an employer treats a qualified employee or applicant unfavorably because he or she has been diagnosed with cancer. It can also be anticipatory.
It is equally unlawful for an employer to treat an employee or applicant unfavorably because he or she suspects that the employee or applicant may have a disease/disability.
Cancer Diagnosis and Reasonable Workplace Accommodation
The law requires employers to reasonably accommodate employees with disabilities. Cancer patients are also afforded this protection under federal and California law, including the reasonable accommodation provisions of the ADA.
Failure to reasonably accommodate an employee suffering from cancer may be a violation of the law. It could amount to discrimination under California law. The employer has an obligation to begin an “interactive process” to understand and propose accommodations as soon as they learn about the employee’s needs.
Types of Workplace Cancer Discrimination
Cancer discrimination may occur in many different forms. These include but are not limited to the following:
- Adoption of a new company policy that adversely affects the interest of cancer patients
- Refusal to provide reasonable accommodation and disability needs of employees with cancer
- Permission of harassment of employees with cancer in the workplace
- Refusal to hire or promote employees with cancer
- Demoting or firing employees with cancer.
The discrimination may also be by association. The ADA expressly prohibits discrimination against an employee on the basis of his or her association with a cancer patient.
Types of Workplace Cancer Discrimination Claims
There are two main types of discrimination cases that may be filed. They are disparate impact discrimination and disparate treatment discrimination. A skilled, experienced lawyer can assist you in developing an appropriate claim in response to a situation in which you are targeted because of your health condition.
Disparate treatment is when a cancer patient in an employer’s workforce is singled out for negative treatment. These employees are specifically targeted because of their disease or disability. It may be in the form of failure to provide time off for cancer treatments or scheduled doctor visits.
The burden of proof however lies on the employee. This means that the employee must provide proof that she was victimized because of her cancer diagnosis.
Disparate Impact Discrimination occurs when a newly introduced policy has a significant negative impact on employees with cancer.
These policies may appear neutral on the face of it. But if they have an adverse impact on employees with a protected characteristic, they will be discriminatory.
How to Pursue a Workplace Cancer Discrimination Complaint in California
The first step is to contact the Department of Fair Employment and Housing (DFEH) and file a pre-complaint inquiry form. This should be done within one year of the acts of discrimination. You can also file with the Equal Employment Opportunity Commission (EEOC), which administers federal law.
The DFEH will carry out an investigation when a complaint is filed. After investigation, they will encourage appropriate dispute resolution. Failure to resolve a dispute may result in legal action if there is enough evidence to support a claim.
- Step 1: Contact the DFEH and file an intake form. Present the specific facts within your knowledge and provide any record of the incident that you have. DFEH/EEOC will thereafter investigate and decide on whether to accept your case for investigation.
- Step 2: If your case is accepted for investigation by the agency, a complaint form will be prepared and you will be required to sign. The form will subsequently be delivered to the respondent who is the person who allegedly discriminated against you. The respondent will then be required to file a response.
- Step 3: The agency will proceed to investigate and determine if discrimination did occur. The investigation may take up to 10 months. If discrimination was a probable occurrence, the agency may begin a mediation after the investigation.
- Step 4: If the parties settle through the mediation then the claim ends. But, if they fail to settle by mediation, the agency will issue a “right to sue” notice which is a condition precedent for instituting a lawsuit.
- Step 5: A lawsuit may then be instituted if the employee still wishes to proceed with the action.
Your Rights and Remedies in a Cancer Discrimination Lawsuit
An employee who has concluded a cancer discrimination lawsuit may claim monetary compensation. The court may grant an injunction to reinstate or promote the employee. The employer may be ordered to reverse a policy or perform such other acts required to accommodate the employee.
You may also be entitled to back pay and compensation for emotional distress caused by the discriminatory conduct.
Contact Our Cancer Discrimination Attorney
Discrimination cases generally need a level of technical expertise to be successful. To handle these technicalities, we advise that you contact a cancer discrimination attorney and we are only a call away. Contact Eldessouky Law today by calling (714) 409-8991. An experienced cancer discrimination lawyer will provide a preliminary case evaluation for you at no cost. In addition, Eldessouky Law never charges a fee in a workplace cancer discrimination case.