My office routinely reviews EEOC and BOLI files.  In most cases, I suggest having an attorney review the status of an administrative investigation before any findings are issued.  There are some cases where it is advantageous to close the administrative investigation before the agency has a chance to finalize its findings.  This is a rather complex analysis and is something that needs to be considered on a case-by-case basis.

There is no doubt that surviving cancer is a difficult and life changing experience.  Employment issues are one of many hurdles a person faces when dealing with a serious illness.  As a lawyer, I see these issues unfold first hand. I can say with certainty that many employers who face employment lawsuits related to cancer survivors could have been prevented with better communication and collaborative efforts.

What employment-related legal protections are there for people who are diagnosed with cancer, undergoing cancer treatment, or living after cancer treatment?  The protections vary, but as a general point, employers should not and in most cases cannot treat you differently because of cancer.  The bulk of protections come in the form of medical leave laws (Oregon Family Leave Act and the Family Medical Leave Act) and disability laws.  There are also various insurance and benefits-related laws that may impact your situation.

For example, just last week, the EEOC announced a $125,000.00 settlement reached for a woman fired after she attempted to return following medical leave for breast cancer.  (Read press release here)

Because employment circumstances and medical conditions vary drastically on a case-by-case basis, it is almost always important that you contact an experienced employment attorney to discuss how to minimize the impact your illness has on your work situation.  When parties work together to address  illness and its effects at work, many issues can be resolved and lawsuits can be avoided.

The U.S. Equal Employment Opportunity Commission (EEOC) announced [on July 7, 2009] that Swissotel will pay $90,000 under a consent decree entered by the federal district court here to resolve a harassment and wrongful termination lawsuit brought by the EEOC on behalf of a developmentally disabled adult.

The EEOC charged in its suit that Swissotel violated the Americans With Disabilities Act (ADA) by permitting two supervisors at its downtown Chicago hotel to harass the employee because of his developmental disability. Specifically, the EEOC said, the employee was repeatedly called “retarded” by his supervisors. Further, the EEOC charged, Swissotel then terminated the employee because of his disability.

In addition to paying $90,000, Swissotel is required under the consent decree settling the suit to give ADA training to all of its Chicago-based employees, post a notice of the settlement at its Chicago hotel, and report to the EEOC complaints of harassment or disability discrimination and any actions taken as a result of the complaints.

The lawsuit, entitled EEOC v. Swissotel Employment Services, L.L.C and Swissotel Chicago, Inc., No. 08-5131 (N.D. Ill.), was filed on September 9, 2008. The case was assigned to District Court Judge Dow and Magistrate Judge Nolan. The EEOC filed suit after an administrative investigation managed by EEOC Chicago District Director John Rowe found reasonable cause to believe that the ADA had been violated, and after first attempting to reach a voluntary settlement through the agency’s conciliation process.

That said, there are things an employment attorney will consider in every case that involves a disability.  As I get the time to write about each of these topics, I will provide links below.  Here are some common considerations under the Oregon disability laws:

1. Do the disability statutes apply to this employer?
2. Is the employee “disabled?”
3. Can the employee perform essential job duties with or without reasonable accommodations?
4. Has the employee notified the employer of a disability and/or requested accommodations?
5. Are the requested accommodations reasonable?
6. Has the employer engaged in an interactive process to accommodate the employee’s disability?
7. Has the employer discriminated or retaliated against the employee?
8. How has this negatively affected the employee?

This list is far from exhaustive, but it should give you an idea of some questions involved in evaluating possible disability issues that arise during the employment relationship.