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Legal Recourse for the Cancer Patient-Returnee: The Rehabilitation Act of 1973

Published online by Cambridge University Press:  24 February 2021

Carin J. Sigel
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Abstract

Recent advances in medical research have dramatically improved the survival rate for individuals with a history of cancer. Large numbers of these “cancer patient-returnees” encounter job discrimination since many employers believe that to hire or maintain them would pose substantial future business risks. This Note argues that cancer patientreturnees may seek relief under the Rehabilitation Act of 1973. The Note concludes that an employer's costs arising out of future risks are too insignificant to justify denial of job opportunities to cancer patientreturnees under the Act.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 10 , Issue 3 , Fall 1984 , pp. 309 - 321
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1984

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References

1 Pepper, , The Victors: Patients Who Conquered Cancer, N.Y. Times, Jan. 29, 1984, § 6 (Magazine), at 14.Google Scholar

2 Kaufman, , Cancer: Do Survivors Face Unequal Treatment, Boston Globe, Nov. 28, 1983, at 41, col. 4.Google Scholar

3 Id. see also Chabner, , Fine, , Allegra, , Yeh, & Curt, , Cancer Chemotherapy: Progress and Expectation 1984, 54 CANCER 2599 (1984)3.0.CO;2-M>CrossRefGoogle Scholar [hereinafter cited as Chabner & Fine].

4 Pepper, supra note 1, at 14.

5 Dietz, , How Doctors Can Help Solve Cancer Patients’ Employment Problems, 6 LEGAL ASPECTS MED. PRAC, Apr. 1978, at 25.Google Scholar

6 Id. at 27; see also Becker, , Few Jobs for Cancer Patients, Wash. Post, Mar. 23, 1975, at B3, col. 1.Google Scholar

7 Dietz, supra note 5, at 27.

8 In Chrysler Outboard Corp. v. Department of Indus. Labor & Human Relations, 14 FAIR EMPL. PRAC. CAS. (BNA) 344 (Wis. Ct. App. 1976), the court held that an ex-cancer patient was handicapped within the meaning of the Wisconsin Fair Employment Act. The definition of handicapped under this statute tracks the language of the Rehabilitation Act. Courts reached the opposite conclusion in two Illinois cases. In Lyons v. Heritage House Restaurants, Inc., 89 111. 2d 163, 432 N.E.2d 270 (1982), and Advocates for the Handicapped v. Sears, Roebuck & Co., 67 111. App. 3d 512, 385 N.E.2d 39 (1978), the courts held that cancer did not constitute a handicap within the meaning of the Illinois constitution and the Equal Opportunities for the Handicapped Act. The definition under Illinois law, however, does not extend to those with a history of a handicap or to those individuals who are perceived as handicapped.

9 29 U.S.C. §§ 701-796(1982).

10 For the historical background on post-World War I legislation, see S. REP. NO. 318, 93d Cong., 1st Sess. 9, reprinted in 1973 U.S. CODE CONG. & AD. NEWS 2076, 2082-84.

11 Id.

12 S. REP. NO. 1297, 93d Cong., 2d Sess. 50, reprinted in 1974 U.S. CODE CONG. & AD. NEWS 6373, 6400.

13 Id.

14 Pub. L. No. 93-112, 87 Stat. 355 1973) (codified as amended at 29 U.S.C §§ 701-796 (1982)).

15 Pub. L. No. 93-112, 1973 U.S. CODE CONG. & AD. NEWS (87 Stat.) 355.

16 29 U.S.C. § 791(b) (1982).

17 29 U.S.C. § 793(a) (1982).

18 29 U.S.C. § 794 (1982).

19 S. REP. NO. 318, supra note 10, at 19, 1973 U.S. CODE CONG. & AD. NEWS at 2085-86.

20 Rehabilitation Act Amendments of 1974, Pub. L. No. 93-516, 92 Stat. 2984 (1978) (codified at 29 U.S.C. § 794 (1982)).

21 29 U.S.C. § 706(7)(B) (1982).

22 S. REP. NO. 1297, supra note 12, at 38, 1974 U.S. CODE CONG. & AD. NEWS at 6389-90.

23 Id. at 38, 1974 U.S. CODE CONG. & AD. NEWS at 6389. This intent is significant in that those who would argue for a narrower interpretation and would exclude cancer patientreturnees from the statutory definition would claim that many of these individuals never had the required impairment.

24 Id.

25 Id.

26 Affirmative Action Obligations of Contractors and Subcontractors for Handicapped Workers, 41 C.F.R. § 60-741 (1984).

27 Id. at §60-741 app. A.

‘Has a record of such an impairment’ means that an individual may be completely recovered from a previous physical or mental impairment. It is included because the attitude of employers, supervisors, and coworkers toward that previous impairment may result in an individual experiencing difficulty in securing, retaining, or advancing in employment. The mentally restored, those who have had heart attacks or cancer often experience such difficulty….

'Is regarded as having such an impairment’ refers to those individuals who are perceived as having a handicap, whether an impairment exists or not, but who, because of attitudes or for any other reason, are regarded as handicapped by employers, or supervisors who have an effect on the individual securing, retaining or advancing in employment.

Id.

28 Id.

29 See 29 U.S.C. § 794a (1982).

30 Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 45 C.F.R. § 84 (1984).

31 Bey v. Bolger, 540 F. Supp. 910 (E.D. Pa. 1982).

32 Vickers v. Veterans Administration, 549 F. Supp. 85 (W.D. Wash. 1982).

33 Davis v. Bucher, 451 F. Supp. 791 (E.D. Pa. 1978).

34 Doe v. New York Univ., 666 F.2d 761 (2d Cir. 1981).

35 E.E., Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D., Hawaii 1980).Google Scholar

36 Duran v. City of Tampa, 430 F. Supp. 75 (M.D. Fla. 1977).

37 Bentivegna v. United States Dep't of Labor, 694 F.2d. 619 (9th Cir. 1982).

38 Grube v. Bethlehem Area School Dist., 550 F. Supp. 418 (E.D. Pa. 1982).

39 Sections 501 and 503 both require the individual to be “handicapped” as well as “qualified“:

Employment under Federal Contracts

(a) Any contract in excess of $2,500 entered into by any Federal department or agency … shall contain a provision requiring that… the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals ….

29 U.S.C. § 793(a) (1982).

No otherwise qualified handicapped individual … shall, solely by reason of his handicap, be excluded from the participation in … or be subjected to discrimination under any program or activity receiving Federal financial assistance….

29 U.S.C. § 794 (1982).

40 442 U.S. 397 (1979).

41 Id. at 406 (emphasis added).

42 Id. at 407 n.7. The Court cites an implementing regulation to reinforce its standard of a qualified individual. This regulation defines the terms as one who meets the “requisite” standards. 45 C.F.R. § 84.3(k)(3) (1978).

43 442 U.S. at 407.

44 Reasonable accommodation under § 504 differs from that under § 501 and § 503. Sections 501 and 503 require affirmative action programs. Section 501(b), which applies to the federal government, mandates that each federal agency submit “an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals … .” These plans must “include a description of the extent to which and methods whereby the special needs of handicapped employees are being met.” 29 U.S.C. § 791(b). Similarly, section 503, which governs employment under federal contracts, requires that every party contracting with the United States “shall take affirmative action to employ and advance in employment qualified handicapped individuals … .” 29 U.S.C. § 793(a). These provisions require that the employer take affirmative action while § 501(c) merely “encourage[s] … State agencies to adopt and implement such policies and procedures.” 29 U.S.C. § 791(c). State agencies fall within the purview of § 504.

45 442 U.S. at 410.

46 Id. at 412.

47 Id. at 409.

48 662 F.2d 292 (5th Cir. 1981).

49 Id. at 293.

50 Dietz, supra note 5, at 26. Since any nearby hospital can provide radiation or chemotherapy, a cancer patient-returnee can receive treatment during lunch hour or break time. Therefore, a cancer treatment schedule requires only minimal, if any, cooperation from the employer.

51 497 F. Supp. 1088 (D. Hawaii 1980).

52 Id. at 1104.

53 Id. at 1093.

54 Id. at 1104.

55 Id.

56 694 F.2d 619 (9th Cir. 1982).

57 Id. at 621.

58 Id. (quoting 29 C.F.R. § 32.14(b)).

59 Id. at 622.

60 Id. at 623.

61 Id.

62 550 F. Supp. 418 (E.D. Pa. 1982).

63 Id. at 424.

64 Bentivegna v. United States Dep't of Labor, 694 F.2d 619, 622 (9th Cir. 1982).

65 See Chabner & Fine, supra note 3.

66 Id.; see also Dietz, supra note 5, at 26.

67 See Dietz, supra note 5, at 27-28; infra notes 68-69.

68 Dietz, supra note 5, at 26; see also Charton, , Cured Cancer Patients Find Bars to Employment, N. Y. Times, Mar. 3, 1974, at 1, col. 3.Google Scholar

69 Dietz, supra note 5, at 27. An interesting study conducted by Metropolitan Life Insurance Company analyzed its own fourteen-year experience of employing individuals with cancer histories and concluded that to employ such individuals is sound practice. Wheatley, & Cunnick, , The Employment of Persons with a History of Treatment of Cancer, 33 CANCER 441 (1974)3.0.CO;2-A>CrossRefGoogle Scholar. The Bell Telephone Company carried out a similar study where it analyzed its experience of employing former cancer patients. It determined that out of 800,000 employees in 1972, 1350 were treated for cancer. Seventy percent were able to return to work.