Employer settles claim over breast cancer recovery that 'would take too long'

Dive Brief:

The B.F. Saul group of real estate companies will pay $210,000 to settle a lawsuit alleging it fired an employee because of her breast cancer, in violation of the Americans with Disabilities Act (ADA).
The U.S. Equal Employment Opportunity Commission (EEOC) sued the company on behalf of an area sales manager for two Marriott hotels in the Dulles, Virginia, region (EEOC v. B. F. Saul Co., B.F. Saul Hospitality Group, and B.F. Saul Property Company, No. 8:17-cv-2879, (D. Md., Sept. 14, 2018)). After she was diagnosed with breast cancer and scheduling surgery, EEOC said the company's VP of HR told her that it would take too long for her to get better, even though it was too early to predict the outcome of the surgery and subsequent treatment.
In addition to the monetary relief, the employer must distribute to all employees policies forbidding disability discrimination and must provide training to all management, supervisory and human resources personnel on discrimination made unlawful by the ADA, with “special emphasis on reasonable accommodation.” B.F. Saul must also report to the EEOC information about employee requests for accommodation and its responses.

Dive Insight:

While cancer wasn't always widely considered a "disability" under the ADA, 2008 amendments to the law expanded the term's definition, in part to include cancer. EEOC's implementing regulations now list the impairment as one that "will, in virtually all cases, result in a determination of coverage" under the law.

As a result, employers generally cannot base employment decisions on a worker's cancer, and may have to provide a reasonable accommodation for the impairment. Such accommodations can include leave, both under the Family and Medical Leave Act, the ADA and state and local laws.

EEOC guidance concerning application of the ADA to persons with cancer acknowledges that although many types of cancer can be successfully treated, the treatment and severity of side effects often are unpredictable and do not permit exact timetables. The guidance emphasizes that an employer may not automatically deny a request for leave from someone with cancer where the employee cannot specify an exact date of return and that granting leave to an employee who is unable to provide an exact date of return may be a reasonable accommodation.