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Judge allows disability bias suit over cervical cancer to proceed

In October 2009, a woman in the Midwest was diagnosed with stage IV cervical cancer. She called her supervisor with the news, and says that she also hoped to continue working as she fought the disease. She had hoped that she could take a different job with her employer that may be less demanding. She was worried about the physical demands of her full time job, and during the phone conversation, she says that she asked about other work.

The supervisor asked if the woman was planning to give two weeks’ notice during the phone briefing. The supervisor expressed the need to have someone in the worker’s role, and claimed that no other work was available in the same division, according to a recent disability discrimination lawsuit. The worker says that about twenty minutes after her brief phone conversation, she simply sent an email to her supervisor offering her resignation.

The issues that can arise when a worker suffers a disabling injury, or is diagnosed with a serious medical condition, may often blind side the affected worker. Our New York readers may not fully understand when federal (or New York worker protection laws) kick in to offer employees protections from discriminatory decisions made by an employer.

In the recent Midwest disability bias lawsuit, a federal judge ruled that the brief phone conversation triggered a duty for the employer to engage in an interactive process under the Americans with Disabilities Act to identify potential reasonable accommodations that may be available for the employee to continue to work. The judge refused to dismiss the workplace discrimination case.

The court found that a jury should have the opportunity to determine whether the supervisor withheld information about potential alternative jobs that may have been available through the employer. The court reasoned that the employer should have to engage in an interactive process, and not rely on the assumption that the disabled worker may be able to find a job within the company through the company website without the employer’s active assistance.

Source: Bloomberg Law, “Failure to inform worker with cancer about jobs may breach ADA duty, judge decides,” Jay-Anne B. Casuga, Sept. 17, 2013

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