Cave Creek, AZ asked in Employment Law and Employment Discrimination for Arizona

Q: Can an employer tell me my cancer is considered a disability and add me to the "list" to make the numbers look good?

I had breast cancer last year and I am now cancer free. I was offended by the approach as she had already added the disability in my HR set up because it made the numbers look good. I never told her about the cancer, as we work in different states and only have a email, phone relationship so I'm not even sure how she knew other than through the usual office gossip. I do not consider myself as having a disability. I was out of work for 1 week and 1 day total. It did not impair me in the slightest. I was offended by her reason that the company's numbers would look better if we had more employees with disabilities.

1 Lawyer Answer
Kai Michael Henderson
Kai Michael Henderson
  • Employment Law Lawyer

A: There are a tangle of issues here and it is never good to have one's privacy violated, especially by a co-worker. On the facts here, it appears that your company internally disclosed that you have a disability. Generally speaking, under the ADA, employers cannot disclose employees' health information to third parties without meeting some of the exceptions such as providing reasonable accommodation or reporting a Worker's Compensation injury. Under the facts above, it does not appear that there was much in the way of accommodation was required, so it is unknown whether this would hold water. It is also not clear that there was third party disclosure.

A person needs to tread carefully with employee/employer relations. While this incident may be evidence of a pattern of hostility in the workplace, it may just be a misunderstanding, or more likely based on just the above an unintentional violation of privacy meant to make the company look like it is more diverse with regards to disability than it actually is. That being said, cancer may fit under the broad categorization of disability under the ADA. If a person is fired for missing a week of work due to their cancer treatment, it is likely that that person would have a claim under the ADA, so it is arguable that it does count as a disability. This despite the fact that only personal or sick time may have been used, thus no accommodation was really necessary. It would depend on the context of the "list" that the employer compiled.

The problems raised are a boss distributing information that she should not even have had, classifying the worker as disabled, and attempting to leverage the alleged disability for public relations. A person may want to speak with a skilled attorney or put out a few job applications for other work if the alleged behavior keeps gnawing at them or no one apologizes and remedies after being confronted. Be careful in jumping ship though or having a tough argument, a lot of people who think they are going to get a million dollar payout often end up with crumbs or nothing when a jury assesses how much an injury is worth, if a case even gets to a jury. They also may have trouble finding a job that was as good as their last one because of the natural storms and currents of the labor market. Some people end up looking for a new job with better management and jump ship into a better job, but they are safest when they have it before they quit the offending job. A good attorney can take a look with a wider lens at a situation like this.

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