Are lawsuits the only way to fight employment discrimination against cancer survivors?
No. State and federal anti-discrimination laws help cancer survivors in two ways. First, they discourage discrimination. Second, they offer remedies when discrimination does occur. These laws, however, should be used as a last resort because they can be costly, time consuming, and 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 response.
When seeking employment, what can I do to lessen the chance I will face discrimination because of my 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 examination, or request medical records from your doctor 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 examination only if it is required of all other applicants for the job. The medical examination 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. If a job questionnaire asks “have you ever had cancer” or “have you had surgery in the past five years, if so, for what?,” answer truthfully and then explain your current health and prognosis. Write in the margins if there are no blank lines.
Some suggestions are:
- “I am presently fit to perform the duties of the job for which I am applying.”
- “I currently have no medical condition that would interfere with my ability to perform the duties of the job for which I am applying.”
- “I have not had cancer for xx years and have a normal life expectancy.”
- Instead of using the word “cancer,” you may consider using the specific type of cancer you have or had (such as “adenocarcinoma” or “lymphoma”) in the hope that the employer will not associate the term with cancer.
- 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 doctor 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 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.
- 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 you have a disability.
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 of your medical team, make an honest assessment of your abilities compared with the mental and physical demands of the job.