Phyllis Ellison, who was diagnosed with breast cancer in August 1993, had a lumpectomy and underwent daily radiation treatment from mid-September through October of that year. Although she continued to work at a software supply company in Texas throughout her radiation treatment, she spent fewer hours in the office, skipping her lunch and taking work home to compensate.
Ellison had no way of knowing then that her illness would later open up the door to a large-scale debate in the federal court system about the definition of disability and if cancer is always included in that definition.
As she struggled through her treatment and to balance her work schedule, Ellison faced added stress from her supervisor. According to court documents, when she told her supervisor she needed a modified work schedule to accommodate her radiation treatments, he suggested that she "get a mastectomy instead because her breasts were not worth saving."
Another day, shortly after a radiation treatment, Ellison got sick and went to the restroom. Her supervisor asked where she had gone and a co-worker told him. According to court documents, "when Ellison stated that she got sick every time she thought of eating or drinking, [her supervisor] responded that it had not affected her weight."
In early 1994, the company she worked for decided to downsize. Ellison's department would shrink from 35 staff members to 31. On March 2, 1994, Ellison was told that she had 30 days to find another position within the company or leave. Ellison was offered and accepted a position in another department.
In the fall of 1994, Ellison filed a lawsuit against the company, and one of her claims was that the company had violated the Americans With Disabilities Act. The court ruled that since Ellison's breast cancer did not substantially limit her major life activities, she did not qualify as disabled and, therefore, could not file a lawsuit under the ADA.
The case was upheld in 1996 by the U.S. Court of Appeals for the 5th Circuit, which has jurisdiction over Louisiana, Mississippi, and Texas. It is one of a handful of cases that have set off warning signals to advocacy groups and legal professionals by ruling against cancer patients whose symptoms do not fit the legal definition of disability.
Who Is Disabled?
The federal definition of a disability is a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.
A U.S. Supreme Court ruling last June may make the original intent of this definition clearer. In Bragdon vs. Abbott, the Supreme Court ruled that a woman infected with the AIDS virus qualified as disabled under the ADA, even though she was asymptomatic. The ruling has widened the definition of disability, but the courts have not made any judgements involving cancer patients since the high court handed down its decision. The Supreme Court was also scheduled to hear three more cases in late April that will question the definition of disability, though none of them will deal directly with cancer and its relation to the ADA.
Legislative History
The ADA became law on July 26, 1990. It is designed to give the same civil rights protections to the disabled that are afforded to people on the basis of race, color, sex, national origin, age, and religion. The entire act guarantees equal opportunity for people with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications.
Title I of the ADA deals specifically with employment, and, as of July 1994, applies to all state and local government employers and private companies with 15 or more employees. It states that someone who is disabled is protected from job discrimination if he or she is qualified to perform the essential functions of a job with or without a reasonable accommodation (see sidebar).
"The ADA is very powerful," said L. Susan Slavin, a Jericho, N.Y. attorney. "I've seen people who are beat up from this disease [cancer] who feel they have to go to their employers and beg to get time off for treatment. The ADA says to people that they have these rights so people aren't going in begging with their hats in their hands they're going in from the strength of civil rights."
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"The courts are saying [in these cases] if you are asymptomatic, it is not substantially impairing a major life activity, therefore you are not disabled, and therefore get no protection under the statute," Slavin said. "This trend is devastating to people with cancer."
Cancer patients represent a small percentage of the total number of people who file claims under the ADA (see chart); however, there has been a lot of debate surrounding them.
A 1996 decision by the 11th Circuit Court, which has jurisdiction over Alabama, Florida, and Georgia, also brought into question how the term "disability" applies to cancer patients.
Mervin Gordon had been diagnosed with malignant lymphoma in May 1993. After a 10-day leave of absence, as well as a few days off for medical tests, Gordon returned to work to discover that his assignments had been changed and he was no longer given certain privileges, such as access to company vehicles.
Gordon filed a claim against the company under the ADA. The district court ruled in Gordon's favor, but the court of appeals reversed the judgement, stating that "while the side effects that Gordon suffered as a consequence of his chemotherapy treatments may qualify as `physical impairments' under the ADA, we hold that such impairments did not substantially limit his ability to care for himself or to work."
Barbara Hoffman, J.D., general counsel for the National Coalition for Cancer Survivorship and a law professor at Rutgers University School of Law, described these prior rulings as a `Catch-22' situation.
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But disability should continue to be defined on a case-by-case basis, said Christopher Kuczynski, J.D., L.L.M., assistant legal counsel and the director of the ADA Policy Division at the Equal Employment Opportunity Commission (EEOC), which is the enforcing agency for the law.
"We're concerned about how the courts have interpreted the definition of disability, and that cases are being thrown out because cancer patients aren't qualified as disabled," Kuczynski said. "This has been an issue with other conditions as well."
On the positive side, cancer patients have benefitted from protection under the ADA.
ADA at Work
The first ADA case the EEOC ever took to a jury trial was in 1992, and involved a Chicago man who was fired 3 months after being diagnosed with inoperable metastatic brain cancer. The court ruled in his favor, and the decision was later upheld by the U.S. Court of Appeals for the 7th Circuit Court (Illinois, Indiana, and Wisconsin) in 1995.
Hoffman pointed out that, though there are a number of cases that have ruled that cancer patients are not disabled, there are probably many more that have ruled in their favor. These cases often go unrecorded or unnoticed because they are often settled out of court.
It is difficult to determine why these cases arise in the first place, but attitudes about cancer patients may offer some clues. According to a 1997 survey conducted by the National Coalition for Cancer Survivorship and the California-based biotechnology firm Amgen, 18% of workers believe that people who are being treated for cancer are incapable of working because of treatment side effects and 27% of workers believe they would have to pick up the slack for a co-worker with cancer.
"Discrimination can be something subtle like having [a cancer patient's] desk moved, having their workload reduced so that they have less responsibility or less ability to advance, losing benefits, or outright being fired or denied a job," Hoffman said.
In 1996, Amgen and Working Woman magazine conducted a survey of 500 cancer survivors. The survey found that workers with cancer are fired or laid off five times as often as other workers. Work can be a stabilizing force in a person's life; 81% of the cancer survivors surveyed said working helped them maintain emotional stability during their cancer treatment.
"Returning to work after cancer represents a mastery over patients' own lives that's very important," said Karrie Zampini, director of Memorial Sloan-Kettering Cancer Center's Post Treatment Resource Program, which provides education, counseling, and advocacy services for cancer survivors and their families.
As the courts continue to discuss the definition of disability, informing patients and employers of the protections that the ADA offers is the best way to ensure that the act's intent is carried out.
"The ADA and state human rights laws have the potential to be a phenomenal vehicle for cancer patients," Slavin said. "People are so overwhelmed with their diagnosis and trying to get adequate medical care that they're not thinking about their jobs. We must continue to educate the patient population so patients can advocate for themselves."
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