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Best Disability Discrimination Attorneys Answers: Can I be fired after being diagnosed with cancer? Can my employer force me to stop working because it wants me to focus on my health? How do I prove a disability discrimination claim?

I know that this should go without saying, but employers please don’t fire employees because they have been diagnosed with cancer. Our disability discrimination lawyers best explained what is necessary for an employee to show that he or she suffers from or is regarded as suffering from a disability within the meaning of the ADA. (Best Law Read: Is A Heart Attack Considered A Disability Under The ADA?; Can I Be Fired For Getting COVID?). To be clear, cancer is now a covered disability under the ADA. While one would think that cancer always should be and always has been a protected disability under the Americans with Disabilities Act (“ADA“), many courts had previously ruled that cancer was not automatically a covered disability. To fix this, the ADA was amended by the ADA Amendments Act of 2008 (ADAAA), which after it was passed by Congress and signed by President George W. Bush, became effective on January 1, 2009. The law made a number of significant changes to the definition of “disability” under the ADA to make it easier for employees to prove their claims. Congress overturned several Supreme Court decisions that interpreted the definition of “disability” too narrowly, which denied protection under the ADA to many employees with impairments such as cancer, diabetes, and epilepsy. Under the ADAAA amendments, impairments that are episodic or in remission are to be a disability if it would substantially limit a major life activity when active. The ADAAA also made it much easier for employees to meet the “regarded as disabled” definition of disability.

Since the ADAAA was specifically designed to include cancer within the definition of disabled, it is hard for employers to argue that cancer is not a disability. But many still do with their lawyers pointing to cases that predate the ADAAA because they don’t pay attention to the changes in the law. And while judges do their best, employment lawyers still need to put the correct law in front of them for consideration. That’s why you always want to get the best employment discrimination lawyers that you can find instead of some jack-of-all-trade lawyer that will not understand the evolution of the law.

With the understanding that cancer should be considered a disability for the purposes of the ADA as amended, claims under the ADA can be proven in one of two different ways, either by direct evidence or a burden shifting process call the McDonnell Douglas test. Obviously, the direct evidence test is used where the employer has made it clear that the adverse employment action (such as firing the employee) was done, at least in part, because the employee has a disability. (see What Is An Adverse Employment Action?). The McDonnell Douglas test is used where there is no clear direct evidence – because employers think that they can hide and lie about the reasons they fire disabled employees. In order to win a disability discrimination or wrongful termination under the ADA, the employee must present evidence that: (1) the employer is covered by the ADA; (2) the employee suffers from or is regarded as suffering from a disability within the meaning of the ADA; (3) the employee was qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of his disability or perceived disability. Several United State Court of Appeals “have characterized the evidence necessary to satisfy this initial burden as ‘minimal’ and ‘de minimis.” Zimmermann v. Assocs. First Cap. Corp., 251 F.3d 376, 381 (2d Cir. 2001)

Once an employee has minimal requirements, “the burden of production shifts to the defendant, who must proffer a ‘legitimate, nondiscriminatory reason’ for the challenged employment action.” Woodman v. WWOR–TV, Inc., 411 F.3d 69, 76 (2d Cir.2005). And if the employer articulates a legitimate, nondiscriminatory reason, the employee must then prove that the employer’s articulated reasons are pretext, which is a fancy legal word for lie. (Best Law Read: Employment Discrimination Question: What Is Pretext?).

Let’s look at an example. The joint employers are Car dealers Victory Automotive Group, Inc. and Cappo Management XXIX, Inc. After missing a few days of work, Aryn Rahimi, a title clerk, informed her employers that she was in the hospital and still awaiting a diagnosis. The next day, Rahimi told her boss that she had been transported to a different hospital to be evaluated by a specialist because the doctors were “afraid her body might shut down.” Two days, Rahimi submitted a doctor’s note to her employer that put her out of work until October 28. On October 29, Rahimi reported to her employers that her doctors thought she might have pancreatic cancer, but that she would be returning to work on November 1. Not wanting to deal with an employee with cancer, the employers wrongfully fired Rahimi on October 31 and then on November 1, sent Rahimi a termination letter advising her that her termination was “not a reflection of your performance in your job,” and that the employers hoped that Rahimi was “recuperating and getting her strength back.”

Employers cannot decide what is best for an employee. They cannot decide that it would be best for an employee to focus on her health nor force an employee to take leave under the Family and Medical Leave Act (“FMLA“). (Best Law Read: Lawyer: Can I Be Forced To Take FMLA Leave?). Employees and their doctors get to make those decisions.

Well, given that the employer said that the firing had nothing to do with performance and the letter specifically referred to her health issues, this is one of those rare cases that would use the direct evidence method of proving disability discrimination. Once lawyers got involved and a lawsuit was filed, these employers realized that they had a major problem. That’s why these employers recently settled the case for $150,000.

If you are about to or have just fought a battle with cancer, you should not have to be concerned about being fired. If you were fired because you have cancer or are in remission, our lawyers will fight your wrongful termination with every resource we have at our disposal. If you even think that you might need a disability discrimination lawyer because of cancer or any other disability, then call the right attorney to schedule a free and confidential consultation. Calling our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown and Detroit right now is best. Employment discrimination lawyers at Spitz, The Employee’s Law are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.

Disclaimer:

This employment law website is an advertisement. The disability law materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I disabled under the ADA?”, “what should I do if I was fired today when I told my boss I have epilepsy” or “can my boss fire me for being in the hospital”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.