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From Cancer Patient to Cancer Survivor: Lost in Transition
everyday activities, such as talking, caring for oneself, and getting to work. Some have the misperception that “hidden” disabilities such as cancer, AIDS, arthritis, and mental illness are not bona fide disabilities needing accommodation. The U.S. Department of Labor, however, explicitly states that such hidden disabilities, just like those that are visible, can result in functional limitations that substantially limit one or more of the major life activities (U.S. Department of Labor, 2000).
Cancer survivors, regardless of whether they are in treatment, in remission, or cured, are usually protected as persons with a disability because their cancer represents an impairment that substantially limits a major life activity. Federal courts and the Equal Employment Opportunities Commission (EEOC) usually consider cancer to be a disability under the ADA (Hoffman, 1999). Whether a cancer survivor is covered by the ADA is determined, however, on a case-by-case basis. Because the U.S. Supreme Court has not, to date, squarely addressed whether all cancer survivors are protected by the ADA, cancer survivors’ rights under the law vary depending on the facts of the individual case and the court in which the case is heard.
Some courts have concluded that cancer survivors are “persons with a disability” as defined by the statute. Other courts, however, have placed cancer survivors in a “Catch-22” by concluding that a cancer survivor who is sufficiently healthy to work is not a person with a disability as defined by the ADA (Hoffman, 2000). In one case a woman with breast cancer was acknowledged to have experienced nausea, fatigue, swelling, inflammation, and pain resulting from her treatment, but the U.S. Court of Appeals for the Fifth Circuit found that she could nonetheless perform her essential job duties with accommodations (Ellison v. Software Spectrum Inc.). Although the Court of Appeals found that the woman’s cancer affected her ability to work, it concluded that these limitations were not sufficient to render her a “person with a disability” as defined by the ADA. Other courts have followed the reasoning of the Fifth Circuit and rejected lawsuits by cancer survivors. In another case, a long-term survivor of non-Hodgkin’s lymphoma, fired because his employer feared that future health insurance claims would cause his insurance costs to rise, was determined not to be covered under the ADA after his dismissal (Hirsch v. National Mall and Serv., Inc.). The court concluded that “the ADA was not truly meant to apply to this situation” because the claimant was discriminated against due to the costs of his cancer treatment, and not because of the cancer itself” (Hirsch, 989 F. Supp. 977, 980 [N.D. Ill. 1997]).
The ADA prohibits discrimination in most job-related activities such as hiring, firing, and the provision of benefits. In most cases, a prospective employer may not ask applicants if they have ever had cancer. An employer has the right to know only if an applicant is able to perform the essential