We represent California employees who have been wrongfully terminated or discriminated against because of their physical disability, mental disability, or medical condition, including cancer. Cancer is a group of related diseases characterized by the out-of-control growth of abnormal cells caused by environmental exposures or inherited mutations, among other causes. According to the American Cancer Society, one in two men and one in three women will be diagnosed with cancer in their lifetime. According to another study, 46% of people diagnosed with cancer are of working age. Given the prevalence of cancer in our society, nearly every day a worker in California is diagnosed with cancer. Cancer and cancer treatment can affect a person in many ways, including pain, fatigue, weight loss, nausea, hair loss, concentration and memory loss, and depression. Therefore, it is of critical importance that California employers support workers who have been diagnosed with cancer. Important ways that an employer can support a worker diagnosed with cancer include:
Allowing a worker to
may also be reasonable accommodations.
Unfortunately, an employee who discloses a diagnosis of cancer or a history of cancer to his or her employer sometimes encounters discrimination or stereotyping in the workplace. Employers and coworkers may misjudge an employee’s ability to work during and after cancer treatment. Employers may be unwilling to retain the employee, concerned cancer treatment may affect the employee’s ability to work. Employers may be unwilling to provide the time off required for surgery, recovery, chemotherapy, radiation, or other treatments. Employers may resent an employee who, because of the unpredictable nature of cancer recovery, requires a longer leave of absence or need for accommodations than originally estimated.
The FEHAThe California legislature enacted the California Fair Employment and Housing Act (FEHA) (California Government Code section 12900, et seq.) to provide effective remedies to eliminate discrimination against employees who, through no fault of their own, possess a characteristic or characteristics that historically have been targeted for discrimination. See California Government Code section 12920.
“It is an unlawful employment practice . . . For an employer, because of . . . physical disability, mental disability, medical condition . . . to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” California Government Code section 12940.
Understandably, the statute does contain some realistic limitations on these protections. An employer may refuse to hire or may discharge an employee who, because of his or her medical condition, “is unable to perform the employee's essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations.” California Government Code section 12940(a)(1).
In 1975, a provision prohibiting cancer-related discrimination was added to the predecessor of the FEHA. Not only was employment discrimination based on “physical handicap” prohibited, but also employment discrimination based on “medical condition.” The term “medical condition” is defined to include “[a]ny health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.” California Government Code section 12926(i)(1).
Examples of Employment Discrimination due to CancerFisher v. Superior Court
In Fisher v. Superior Court (1986) 177 Cal.App.3d 779, Alpha Therapeutic Corporation (Alpha) operated donor centers for the collection of plasma and other blood products. Alpha hired Fisher to become director of its San Francisco donor center. Less than a year later, Fisher was diagnosed as having lymphosarcoma, a form of cancer affecting the lymphatic system. Fisher was required to take a medical leave of absence and stop working to undergo medical treatment. Fisher was unable to return to Alpha within one year of when he began a medical leave of absence. In January 1981, his doctor released him to return to work with certain restrictions. Alpha contended that because of Fisher's restrictions, it was unable to find a position for Fisher. On February 23, 1981, Alpha terminated Fisher’s employment retroactively, purportedly based on a written policy of limiting medical leaves of absence to one year.
Fisher then filed a complaint against Alpha with the Department of Fair Employment and Housing (DFEH). Fisher alleged that by terminating his employment Alpha had discriminated against him based on a medical condition in violation of the FEHA. The DFEH investigated the complaint and determined that Alpha had not discriminated against Fisher. Fisher then filed a lawsuit against Alpha. He alleged among other legal theories that Alpha terminated his employment in violation of the FEHA, which prohibits discrimination against an employee based on a “medical condition,” defined as a health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. The Court of Appeal, First District, Division 2 ruled that Alpha had a reasonable accommodation obligation to Fisher with respect to his cancer-related medical condition.
Swanson v. Morongo Unified School District
In Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, Swanson was an elementary school teacher with over 30 years’ experience. The Morongo Unified School District (District) hired Swanson as a technology and reading specialist and computer laboratory teacher. Swanson received excellent performance evaluations from her principal. At the end of her first year, a new principal made a last minute change to Swanson's teaching assignment for the following year. She was assigned to a reading specialist position, which would require Swanson to undergo additional training.
Approximately a month later, Swanson was diagnosed with breast cancer and underwent a mastectomy. Although the training occurred just two weeks after her surgery, Swanson attended a five-day training for her new position. On the final day of the training, Swanson was sent to the emergency room due to complications from her surgery. Swanson later delayed radiation and chemotherapy treatments so she could prepare lesson plans and instructional materials for her replacement while she was on leave.
For the following year, Swanson was reassigned from her reading specialist position to a fifth grade teaching assignment. Swanson objected that this would be her third different assignment in three years, and her precarious health prevented her from performing the work necessary for a new assignment. If she were reassigned, Swanson asked if she could fill an open second grade teaching assignment because she recently taught that grade at a different school. The District, however, gave that opening to another teacher and assigned Swanson to teach kindergarten even though the District knew she had not taught kindergarten in nearly 30 years. Swanson expressed concern that because her cancer treatments damaged her immune system, exposure to the illnesses of kindergarten children would threaten her health. The District refused to change Swanson's teaching assignment.
After Swanson was forced to take a leave of absence of over two months due to a hospitalization she attributed to her kindergarten teaching assignment, the District orchestrated matters so that Swanson received poor evaluations. The District then decided not to renew her contract.
Swanson later filed a lawsuit alleging discrimination based on medical condition. The trial court dismissed her lawsuit. Swanson appealed. The Court of Appeal, Fourth District, Division 3, reversed the judgment of the trial court. The Court ruled that Swanson presented evidence establishing a triable issue of fact on whether the District intentionally discriminated against Swanson when making teaching assignments and by its treatment of Swanson after her cancer diagnosis and medical leaves.
Contact UsIf your employer has terminated your employment or otherwise discriminated against you because you have been diagnosed with cancer, call the experienced attorneys at Kokozian Law Firm, APC or Contact us via our online form.