A Cancer Diagnosis May Not Provide Disability Employment Protections
This comment briefly notes eight US Courts of Appeal decisions involving cancer that affirmed a grant of summary judgment (a decision without a trial) in favor of the employer when the employee claimed that disability rights under the Americans with Disabilities Act (ADA) were violated. Always consult an experienced attorney in all disability situations.
The Americans with Disabilities Act (1990) broadly prohibits disability based discrimination when an employer has 15 or more employees. In overview, the employee must demonstrate a disability, that she was otherwise qualified for the position in question, and that the exclusion from the position was solely because of the disability. “Disability” is defined under the ADA as a physical or mental impairment that substantially limits one or more of a person’s major life activities, or that one has a record of such impairment, or one is regarded as having such an impairment. If the applicant or employee is otherwise qualified for the position, the employer must provide a reasonable accommodation unless such accommodation will cause the employer an undue hardship.
The following is a brief and incomplete overview of these cases from the most recent decision to the oldest:
2017; Third Circuit. Alston v. Park Pleasant, Inc.
The employee began working in 2011 and had a negative employment review in 2012. About one month later she was diagnosed with breast cancer. The employer then began weekly performance reviews and she was terminated about one month after her cancer diagnosis.
The Court wrote: “We agree that cancer can – and generally will be – a qualifying disability under the ADA.” However, an individualized assessment must be made to determine if the cancer limited any substantial life activity. Here, she never claimed any limitations and her case was dismissed. While her employer did not preserve all the requested evidence, no sanctions were assed for “spoliation of evidence” since the employer had not acted in bad faith.
2016; Eighth Circuit. Ochmke v. Medtronic, Inc.
The employee was diagnosed with Hodgkin’s lymphoma and the cancer was in remission since 1999. However, the treatment caused long-term health effects that she reported to her employer when she was hired in 2003. Over several years the employer allowed medical leave and work from home from time-to-time. About 2008 she began have disagreements with her supervisor and several customers complained about her service. After a number of events, detailed by the Court, in 2010 she was placed on a Performance Improvement Plan and was terminated.
The Court applied a “mixed-motive causation standard” since her termination could have been for requesting an accommodation or for performance issues. The Court determined that there was an insufficient causal connection to conclude that the termination was for requesting an accommodation. Likewise, there was no evidence of retaliation by her employer for her assertion of ADA rights.
2016; Third Circuit. Fiorentini v. William Penn School District.
The employee began work in 2001 as a literary coach and reading specialist. In the Spring of 2009, a union officer told the employee that she might be laid off due to funding issues and her not being certified as a teacher. The employee was diagnosed with breast cancer in the fall of 2009 and received medical leave. Ultimately in 2011, the employer eliminated her instructional specialist position and she was furloughed because her credentials were insufficient to fill any available position.
The Court determined that that there was no “evidence that her disability was connected to, let alone a ‘determinative factor’ in, the decision to furlough her.” She lacked teacher certification. The Court additionally emphasized the union officer warning that she had received prior to her cancer diagnosis.
2016; Eleventh Circuit. Perry v. City of Avon Park.
The employee began working as a water meter reader in 1999. In 2009 her duties were changed to outdoor maintenance such as cleaning, painting, and landscaping. In 2011 the employee was diagnosed with breast cancer. After leave and treatment, the employee returned to work but in 2012 she was medically instructed to limit her time in sunlight and in hot and cold temperatures. The employee was subsequently terminated as being unqualified to perform her work.
The Court stated that “we look to the employer’s judgment as to what functions of the job are essential, including the written description of the position. We give the employer’s view substantial, but not controlling weight.” An employer need not change a job description or eliminate an essential job function. Hence, the employee was not a “qualified individual” even with her proposed accommodations of being resigned to office work or only working under the medical limitations that had resulted in “three consecutive days” of being unable to work.
2016; Tenth Circuit. Vinez v. Sky Chefs, Inc.
In 2010 the employee was hired as a Transportation Manager. In 2011, she took leave for breast cancer treatment. In June, 2012, after her leave had been extended, she was medically cleared to return to work. Several months later she was laid off in a corporate restructuring.
The Court wrote that the employee failed to provide “some affirmative evidence that her disability was a determining factor” in the termination decision. The fact that the stated reason for an employment action may be false is not standing alone evidence of discriminatory intent or discrimination. The employer followed its restructuring and reduction in force guidelines.
2015; Eleventh Circuit. Spears v. Creel
In 2004, the employee was hired to work at a jail and ultimately worked in the medical unit. In 2011 she was diagnosed with pre-cancer and in 2012 she had surgery and a cancer diagnosis. About one week later she was informed that all medical jobs, including hers, at the jail were being terminated since a private health care provider had been engaged. She attempted to transfer within the jail and at this time informed her employer of her cancer. After a doctor’s note indicated that she could carry-out the new duties, she was transferred. Due to complications from the cancer treatment, she was unable to perform certain essential job functions and was terminated.
The Court wrote that an employer need not “reallocate job duties in order to change the essential functions of a job.” “Essential functions” are determined by the written job description as well as testimony by the supervisor. Here, the employee’s proposed accommodation would change the essential functions of the job, cause uncertainty in scheduling, and increase the overtime of other employees. Additionally, she did not follow the procedure to request donated leave from her co-workers.
2012; Fourth Circuit. Fields v. Verizon Services Corp.
The employee had worked for twenty-seven years. In 2008, she received a low performance evaluation and months later in 2009 was diagnosed with breast cancer. Performance ratings occurred while she was off work due to treatment, but she testified that her supervisor was generally “supportive” and that she was “always treated fairly.” However, she was ultimately terminated in a reduction in force (RIF).
The Court wrote that the employer presented a legitimate, nondiscriminatory reason for the employee’s termination because the employee lacked experience in an area that was the strategic focus of the company. The employee could not demonstrate that the low evaluation was due to her cancer in that it occurred prior to her diagnosis. While some evaluation criteria were subjective, they appeared to be applied in an even-handed manner. Additionally, courts do not second guess the wisdom of business decisions.
2012; Tenth Circuit. Valdez v. McGill
The plaintiff, Valdez, is acting as the representative of the estate of Brown, the employee. Brown worked as a warehouse supervisor and in 2005 told his employer that he had cancer and was approved for leave for surgery. Eventually, in 2007, the employee was terminated for “poor work performance and excessive absences.”
The Court wrote that allowing the employee to work from home was not a reasonable accommodation option since “Brown conceded his job required physical attendance at the workplace.” An indefinite leave of absence was inappropriate because being “uncertain if or when he will be able to return to work” prevents leave from being a reasonable accommodation. Likewise, utilizing a temporary employee or reassigning an employee as a substitute is not a reasonable accommodation. Furthermore, “an employer is not required to engage an employee in a futile interactive process where … no reasonable accommodation is possible.”
Some brief observations from these decisions:
1. The sequence of events and exactly when the cancer diagnosis was communicated to the employer may be significant.
2. Document precisely what are the essential functions of the employment position in question.
3. An employer need not significantly change the activity requirements of an employment position in order to accommodate an employee.
4. A request by an employee for a reasonable accommodation or transfer must work within the established framework of the essential job functions and the employee’s qualifications.
5. An employer is free to make business and financial decisions and restructure its business at will.
6. While objective job performance evaluation standards are desirable, subjective standards that are fairly applied will be upheld.
7. Carefully kept personnel records and written documentation are always important.
8. Employers often have worked with the employee’s medical issues over a period of time and this provides unstated evidence of the employer’s good faith.
9. Careful questioning of the employee by the employer’s attorney may elicit evidence of fair treatment and essential job functions.
10. These decisions strictly apply the standards created by the Americans with Disabilities Act.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in all employment and discrimination situations.