Cancer Victim Wins Discrimination Case
Three cheers for the Third Circuit Court of Appeals. In Eshelman v. Agere Systems, Inc., the Court issued a much needed opinion in favor of a cancer victim under the American with Disabilities Act .
While it might seem obvious to some that discriminating against people who have cancer is against the law, it’s not all that obvious to most courts.
I represented a woman named Christine Hood several years back who was fired for going to chemotherapy treatments. Though it sounds outrageous to most, both the trial court and the court of appeals threw out the case finding that Chris was not protected under the law (the Ohio anti-discrimination statute).
The case, Hood v. Diamond Products, Inc. went all the way to the Ohio Supreme Court which ultimately found that yes indeed, "cancer could be considered a handicap." The decision allowed Ms. Hood to have her day in court and proceed with her claim (it took ten years). So while it saddened me to see that cancer victims are still fighting for their right to be protected from discrimination, it warmed my heart to read about this recent victory.
Joan Eshelman was a twenty year employee diagnosed with and treated for breast cancer. As a side effect of her chemotherapy Eshelman suffered a cognitive dysfunction resulting in short term memory loss.To compensate, she carried a notebook and also made arrangements for help with appointments which required driving.
With these adjustments, the parties agreed that she excelled at her job and she continued to receive outstanding performance evaluations. In spite of her strong record, Eshelman was selected for layoff during a company restructuring in 2001.
Eshelman sued under the American with Disabilities Act. She didn’t allege that she was disabled, but instead claimed that she was terminated based on her employer’s belief that she was disabled, or because of her record of disability. The jury found in her favor and awarded $170,000 in back pay and $30,000 in compensatory damages in 2005. On appeal, the Third Circuit affirmed the verdict on January 30,2009.
Because Bailey's testimony afforded the jury a sufficient basis to conclude that Agere slated Eshelman for termination based on its perception -- whether accurate or not -- that her cancer-related memory problems rendered her unfit for any job . . . we must not disturb the verdict insofar as it is based on a "regarded as" disabled theory.
Even though laws prohibiting disability discrimination have been around since 1974, it’s still really tough for cancer victims to fight prejudice in the workplace. The New York Times reported today that cancer surviviors are 37 percent more likely to be unemployed than healthy peers. That’s why this new Third Circuit decision is such an important case. People with cancer are often discriminated against but are unable to meet the requirement of permanent disability under the ADA and a result their cases are often dismissed. The ADA prohibits discrimination of those “regarded as” having a disability, or having “a record of” a disability in addition to those individuals who are actually disabled.
This case sets forth a clear and well reasoned decision for cancer victims seeking to challenge discriminatory employment decisions which affect their lives. The new ADA amendments should also help.
