Your Legal Rights
Steps to consider if you feel you have been treated differently because of your cancer experience:
- Consider using your employer’s policies and procedures for resolving employment issues informally. All state and local governments are required to have a grievance procedure and designated compliance officer for civil rights violations of employees with disabilities.
- First, let your employer know that you are aware of your legal rights and would rather resolve the issues openly and honestly rather than file a lawsuit. Be careful of what you say during discussions so that something you say will not be used to hurt your claim should your discussions fail to resolve the problem.
- You need to receive chemotherapy one day a week. Your doctor has agreed to give you Friday afternoon appointments. You inform your boss who says, “I’m sorry, but I’ll have to let you go because your job demands that you work at least forty hours per week.”
- One way to respond is, “My doctor and I believe I am able to continue working. Because I can stay at work until 1:00 p.m. on Fridays, I would be pleased to work an extra hour or two Monday through Thursdays to make up the missed time. My doctor anticipates that I will need chemotherapy only for xx weeks, so I should be back to my regular schedule by ________. I understand that the state human rights law protects my right to work if I am able to continue to perform my job despite my illness.”
- If you need some kind of accommodation to help you work, such as flexible working hours to accommodate doctor’s appointments, suggest several alternatives to your employer. If your employer offers you accommodations, do not turn them down lightly. Such an offer may help the employer’s position if the case ends up before a judge. The Job Accommodation Network, a free service of the President’s Committee on Employment of People with Disabilities, helps employers fashion accommodations for disabled employees. Call 1-800-ADA-WORK for more information.
- Educate employers and co-workers who might believe that people cannot survive cancer and remain productive workers. For example, you could give your employer a letter from your doctor explaining the type of cancer you have or have had, and why you are able to work. More than 10,000,000 Americans are cancer survivors, so there is a good chance that some of your co-workers have had cancer and are now valued employees.
- Ask a member of your health care team to write or call your employer to offer to mediate the conflict and suggest ways for your employer to accommodate you.
- Consider seeking support from your co-workers. They have an interest in protecting themselves from future discrimination.
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.
Your complaint should be filed with the closest regional EEOC office. To obtain the location of your regional EEOC office, call the EEOC Public Information System in Washington, DC at 1-800-669-4000. You can obtain publications from the EEOC that explain the Americans with Disabilities Act and how to enforce your rights under the law by calling 1-800-669-EEOC or by visiting the EEOC web site at www.eeoc.gov. If you can prove that you are qualified for a job but were treated differently because of your cancer history, you may be entitled to back pay and benefits, injunctive relief such as reinstatement, equitable monetary damages, and attorney’s fees. State governments, however, are not required to pay monetary damages. The Americans with Disabilities Act allows an award for compensatory or punitive damages up to $300,000 for intentional discrimination. Intentional discrimination, however, is difficult to prove and these damages are not available against state or local governments or against a private employer who made a “good faith” effort to accommodate you.
Coordination and Review Section
Civil Rights Division
Department of Justice
P.O. Box 66118
Washington, DC 20530
Remedies under the Federal Rehabilitation Act include, but are not limited to, back pay, reinstatement, and attorney’s fees, but do not include punitive damages.
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.”
If you have a choice of remedies, you may file a complaint with each relevant enforcement agency. One agency may “stay” (not act on) your claim until another agency issues a decision. You may always drop a complaint at any time once you determine which agency is most responsive to your claim. Factors to consider when choosing a resource include the types of remedies available, how quickly the agency responds to complaints (ask them how long the process usually takes), and which office is most convenient to you.
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