Diagnos. with cancer worked thru chemo took a 2mo. disability w/radtion hours & benefits cut

Would it be considered medical discrimination if:

My daughter returned to work after a 2 month disability absence only to find that the office had cut her hours from a full 8 hr. day 5 days a week to a 1/2 day 12:30pm to 5:30pm M-F. Also they are now requiring her to pay 1/2 of her medical benefits which prior to this they were paid in full by the companay. She was diagnosised with cancer in January 2006.

My daughter did not want to go out on disability in the first place but was strongly encouraged because she would have to leave work everyday for a 2-3 hour block of time to receive radiation. The office manager highly suggested she take this time off so they wouldn't have to continue to file disability papers for her time off and she felt it would be less disruptive to the work place.

At the time of my daughters leave, it was understood that she would be returning at the end of August to her full-time position. At no time was anything else mentioned or said.

Your help in this matter would be greatly appreciated.

1 answer  |  asked Aug 25, 2006 07:37 AM [EST]  |  applies to New York

Answers (1)

David M. Lira
Discrimination vs. Family Leave

Your question may leave out a lot of critical facts. Because of this, you should not take anything I say here as gospel. You need to meet with an attorney to thoroughly go over the facts of your case.

But I would certainly say that your fact situation presents a choice between a handicap discrimination claim, and a Medical leave claim. (Incidentally, there is no such thing as "medical discrimination.") If given a choice, I would go with a Medical leave claim.

You can pursue a handicap discriminatin claim in New York under either federal or state law. The definition of "handicap" under federal law, the Americans with Disabilities Act, is, however, narrow. So, narrow that I would immediately have doubts about whether you (actually, your daughter) would be covered. The fact is that people bring discrimination cases under the federal law lose more than 90 percent of the time, usually because their disabilities are not considered handicaps under federal law.

Under New York State law, the Human Rights Law, any diagnosed condition is considered a handicap. THus, you should be covered under state law.

But here is the problem with any discrimination claim: To win a discrimination claim you have to prove intent. That is, you need to show that the motivation for the employer doing what the employer did is the protected characteristic. In other words, you need to show that the employer cut hours because of the handicap (or because of a person's race, national origin, gender, etc.).

Proving intent basically requires you to climb into somebody's head. That is hard to do, and that is why discrimination claims are so difficult to prove.

Now, contrast this with a claim under the Family and Medical Leave Act, another federal law. THe key point about FMLA is that it requires employers to provide up to 12 weeks of unpaid leave to deal with a serious health condition. The leave can be taken all at once, or intermittently. You can take a day here and a day there. You can take a part of a day here and there.

During this 12 weeks of leave, the employer cannot terminate you or take any other adverse action. You are suppose to remain in your job, with any changes in pay, hours or benefits.

The nice thing about FMLA is that there is no need to prove intent, in most cases. You are entitled to leave. You took leave. The employer failed to give back your job at the end of your leave. You've proven a violation. No need to show what motivated the employer.

posted by David M. Lira  |  Aug 28, 2006 09:05 AM [EST]

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