Cancer Discrimination Attorney In Long Beach
The right to work in gainful employment without any form of harassment or discrimination is recognized as a civil right in the US.
There are several anti-discrimination laws that protect the rights of employees and job applicants. Workplace discrimination is especially treated as a matter of public policy in the state of California.
The state’s Fair Employment and Housing Act (FEHA), as well as the federal Americans with Disabilities Act (ADA), provide a strong network of rights for covered persons.
If you have been discriminated against because you were diagnosed with cancer, these laws protect your right to seek and obtain remedy. As soon as you suspect that you are being treated differently because of your medical condition, you should speak with a cancer discrimination attorney in Long Beach.
Eldessouky Law has protected the rights of workers from all over California for several years. We have helped employees from all walks of life understand and fight for their rights under the law. We can help you too. Contact our lawyers today to help you file a cancer discrimination complaint.
How am I protected against cancer discrimination?
Employees with cancer are protected persons under both FEHA and the ADA. Both laws protect individuals with a physical or mental disability from discrimination. They also protect individuals with a qualifying medical condition.
Cancer is specifically covered under qualifying medical conditions in both laws. The laws provide that to qualify under the protected medical condition threshold, it must be shown that the person seeking to make the claim has:
- Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
- Genetic characteristics inducing gene/chromosomal conditions or inherited health conditions (§12926(h)).
Under FEHA, the protection also extends to employees with any health impairment related to or associated with a diagnosis of cancer. This would apply if that person has been rehabilitated or cured, based on competent medical evidence (2 Cal. Code Regs. §7293.6(g)).
There is no need for a person filing a cancer discrimination case to show that the disability limits major life activity. This is only required for physical and mental disability.
When does Cancer discrimination occur?
Cancer discrimination occurs when an employer treats a qualified employee or applicant unfavorably because he or she has been diagnosed with cancer. It can also be anticipatory.
It is equally unlawful for an employer to treat an employee or applicant unfavorably because he or she suspects that the employee or applicant may have the disease/disability.
What is reasonable accommodation?
The law requires employers to reasonably accommodate employees with disabilities (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54). Cancer patients are also afforded this protection under federal and California law.
This implies that an employer should consider allowing a change in the employee’s work environment. They should do what they can to enable such employee to perform his assigned functions so long as it does not cause undue hardship.
Failure to accommodate an employee suffering from cancer may be a violation of the law. It could amount to discrimination under California law (Gov. Code, § 12940, subd. (a), (m)). The employer has an obligation to begin an “interactive process” to understand and propose accommodations as soon as they learn about the employee’s need.
Ordinarily, the accommodation should be reasonable for both parties. The Californian court in the case of Hanson v. Lucky Stores, Inc. [(1999) 74 Cal.App.4th 215, 228] held that the reasonableness of an accommodation is generally a factual question.
In what forms can Cancer discrimination occur?
Cancer discrimination may occur in many different forms. These include but are not limited to the following:
- Adoption of a new company policy that adversely affects the interest of cancer patients
- Refusal to provide reasonable accommodation and disability need of employees with cancer
- Permission of harassment of employees with cancer in the workplace
- Refusal to hire or promote employees with cancer
- Demoting or firing employees with cancer.
The discrimination may also be by association. The ADA expressly prohibits discrimination against an employee on the basis of his or her association with a cancer patient.
What types of discrimination cases can I file?
There are two main types of discrimination cases that may be filed. They are Disparate Impact Discrimination and Disparate Treatment Discrimination.
Disparate treatment is when a cancer patient in an employer’s workforce is singled out for negative treatment. These employees are specifically targeted because of their disease or disability. It may be in the form of failure to provide time off for cancer treatments or scheduled doctor visits etc.
The burden of proof however lies on the employee. This means that the employee must provide proof that she was victimized because of her cancer diagnosis.
Disparate Impact Discrimination occurs when a newly introduced policy has a significant negative impact on employees with cancer.
These policies may appear neutral on the face of it. But if they have an adverse impact on employees with a protected characteristic, they will be discriminatory.
Will the court uphold my right to protection from cancer discrimination?
Yes. There are many cases where the court has ruled in favor of an employee in a cancer discrimination case.
For example, the court of appeal in Swanson v. Morongo United shed more light on the extent of an employer’s obligation in this regard. In that case, the claimant was an elementary school teacher who was treated for breast cancer. She was reassigned to work with 2nd graders instead of 5th graders after her treatment. But her fragile health made it strenuous to do the extra work her new assignment entailed.
She was reassigned to teach the Kindergarten class but she complained that it would be dangerous for her health to take up such tasks. This was due to the depletion of her immune system and the diseases she could be exposed to while working with Kindergartners. Regardless, the school district refused to change her assignment and she sued. The school district claimed the Summary judgment was granted in favor of the employer at the trial court. The Court of Appeals reversed the decision holding that the Employer breached FEHA. The employer had violated Swanson’s rights by not going far enough to find a reasonable accommodation.
How can I file my cancer discrimination complaint?
The first step is to contact the Department of Fair Employment and Housing (DFEH) and file a pre-complaint inquiry form. This should be done within one year of the acts of discrimination. You can also file with the Equal Employment Opportunity Commission (EEOC), which administers federal law.
The DFEH will carry out an investigation when a complaint is filed. After investigation, they will encourage appropriate dispute resolution. Failure to resolve dispute may result in legal action if there is enough evidence to support a claim.
- Step 1 : Contact the DFEH and file an intake form. Present the specific facts within your knowledge and provide any record of the incident that you have. DFEH/EEOC will thereafter investigate and decide on whether to accept your case for investigation.
- Step 2: If your case is accepted for investigation by the agency, a complaint form will be prepared and you will be required to sign. The form will subsequently be delivered to the respondent who is the person who allegedly discriminated against you. The respondent will then be required to file a response.
- Step 3: The agency will proceed to investigate and determine if a discrimination did occur. The investigation may take up to 10 months. If discrimination was a probable occurrence, the agency may begin a mediation after the investigation.
- Step 4: If the parties settle through the mediation then the claim ends. But, if they fail to settle by mediation, the agency will issue a “right to sue” notice which is a condition precedent for instituting a lawsuit.
- Step 5 : A lawsuit may then be instituted if the employee still wishes to proceed with the action.
Where to file my cancer discrimination lawsuit?
It is advisable to file your lawsuit in state court as it offers a less strict approach to plaintiffs compared to federal courts. The jury rule for a verdict is that three-fourths of the Jury must agree (§ 618 Code of Civil Procedure). In federal court, the jury must reach a unanimous verdict.
Remedies available in a cancer discrimination lawsuit
An employee who has concluded a cancer discrimination lawsuit may claim monetary compensation. The court may grant an injunction to reinstate or promote the employee. The employer may be ordered to reverse a policy or perform such other acts required to accommodate the employee.
You may also be entitled to back pay and compensation for emotional distress caused by the discriminatory conduct.
Contact our cancer discrimination attorney in Long Beach
Discrimination cases generally need a level of technical expertise to be successful. To handle these technicalities, we advise that you contact a cancer discrimination attorney in Riverside and we are only a call away. Contact Eldessouky Law today by calling 714-409-8991. We offer free case evaluations and are located in both Orange County and Los Angeles County.