When she learned that she had breast cancer, Patricia Garrett did what many people with cancer do: she continued working. Just a few weeks after her initial surgeries, she returned full-time to her position as the Director of Nursing at a University of Alabama hospital. At various points during her radiation treatment and chemotherapy, she took leave from her job. She always returned to work within a short period of time post-treatment, until one day her supervisor told her she was being demoted. Ms. Garrett brought a discrimination lawsuit because she felt that she was unfairly demoted due to her cancer. The federal court that heard her case, and the federal court of appeals that reviewed the lower court's decision, ruled against her. Following Supreme Court precedent that limited who was protected by the Americans with Disabilities Act, the courts held that regardless of whether Ms. Garrett was treated unfairly, her cancer did not sufficiently limit her abilities, and so she did not have a disability—making it perfectly legal for her employer to demote her for having cancer.
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which became effective on January 1, 2009, amends the Americans with Disabilities Act (ADA) to restore the original intent of Congress to protect people with chronic conditions such as cancer, diabetes, epilepsy, and mental illness from discrimination at work, school, public places, and elsewhere. The ADAAA provides hope that in the future, cases like Patricia Garrett's will be decided differently. This hope can only be realized with the help of healthcare professionals.
The article in this issue of ONCOLOGY Nurse Edition by Barbara Hoffman, JD, provides an excellent, comprehensive analysis of the new law. Here we expand on this analysis by offering additional advice to healthcare professionals regarding how to help a cancer survivor establish that he or she is entitled to the ADA's protections. These protections include establishing qualification for an employment opportunity and requiring changes in the workplace (“reasonable accommodations”) that allow survivors to continue working while protecting their health.
HELPING YOUR PATIENT ESTABLISH “DISABILITY” UNDER THE ADA
As noted by Ms. Hoffman, a cancer diagnosis has a negative impact on many surviviors' employment opportunities. Cancer survivors may seek the help of their healthcare providers when facing discrimination at work related to their cancer. Many of them may have no idea that such discrimination is illegal until a knowledgeable healthcare professional points this out.
Once a survivor is aware of the protections of the ADA, he or she will still need the assistance of a healthcare professional to document the diagnosis and to establish that cancer is a disability. To establish employment protections under the amended ADA, a cancer survivor must still prove that he or she meets the law's definition of “a person with a disability.” While the ADAAA made it much easier for healthcare professionals to document that a patient with cancer has a disability, as Hoffman explains, it did not remove the requirement of a basic showing that cancer substantially limits a “major life activity.”
The article by Hoffman does not directly address a great challenge that the ADA once posed to healthcare professionals. Before the ADA Amendments Act of 2008, medical experts who testified regarding whether a person's cancer qualified as a disability under the law were often placed in the difficult position of establishing two possibly conflicting facts: first, that a cancer survivor was sick enough to meet a very demanding standard of disability, and second, that the person was not too sick to do his or her job. Because of Supreme Court rulings narrowing the definition of a disability, that is, a substantial limitation in a major life activity, medical experts had to focus on the ways that cancer substantially limited a person's ability to undertake basic activities such as walking.
1. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306 (11th Cir. 2007).
2. Thomas V, Gostin L: The Americans with Disabilities Act: Shattered aspirations and new hope. JAMA 301:95–97, 2009.
3. The Americans with Disabilities Act. 42 USC § 12101, et seq. (2009).
4. Job Accommodation Network. Available at http://www.jan.wvu.edu/. Accessed on March 22, 2010.