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January 23, 2007 > Watercooler Counsel

Watercooler Counsel

By Rich Proulx & Malinda Tuazon

Q: I recently ran a marathon to raise funds for cancer research as a way to celebrate my second year of being cancer free. I put up posters in my cubicle and asked for donations from a few of my coworkers. I told a few people the reason I was running because I feel so lucky to have a second chance at life. I hate to jump to conclusions, but since then I feel like my HR Manager and some supervisors have been acting strangely with me. The HR Manager asked me (in what he thought was a casual way) how long I was out of work dealing with chemotherapy and its side effects. I'm not even sick now, but I feel like they're treating me like I am going to die within the month. Am I being discriminated against?

Cancer Free
Milpitas

A: What a great question! Many people believe that the Americans with Disabilities Act (ADA) only applies to individuals with current disabilities, that is, people with current substantial limitations on their major life activities. In fact, the ADA also protects people from discrimination if they have a history of a disability or perceived to have a disability. You know you're cancer free, but your HR manager may be simply seeing you as a representation of future long-term absences and rising insurance premiums due to all of the expensive treatments you may need if your cancer returns. Your supervisors, based on their own beliefs or misunderstandings about cancer, may now see you as a person with a weak constitution-they may now feel guilty for demanding long hours from you. For an employer, learning that an employee had a history of a disability should not trigger any different behavior towards that employee. So, it wouldn't be appropriate for your HR Manager to ask you for medical clearance upon learning you once had cancer if you've otherwise been performing well. However, it wouldn't be unreasonable for him to simply ask you if you need any changes or accommodations in order to do your job. If you don't need anything (which seems to be the case), the conversation should stop right there. If your feeling of strange vibes persists, you might consider sitting down with supervisors and your HR Manager and simply educate them a bit on your current condition. Often times, dispelling myths is the most effective way to fight discrimination.


Q: I am a small business owner and as we're growing, I've decided to begin providing health insurance for my employees. While researching different plans, I have seen some which have a cap on benefits for certain diseases like HIV and cancer. This seems reasonable to me, but my wife wanted me to double check it wasn't breaking any laws. Why is it so difficult to provide benefits for my employees?

Scrupulous Supervisor
Newark

A: Once you've finished thanking your wife, come back and read why that was a great suggestion on her part. While there are some insurance companies which have benefit limits for each individual covered, others single out specific health conditions for which they pay only to a certain maximum amount. There is nothing discriminatory about having benefit limits as long as they apply to all health conditions equally. Where things get sticky is when certain health conditions are enumerated as having caps and others are not. I understand your logic in thinking this is reasonable-it's the same logic the insurance companies use-certain health conditions are more likely than others to rack up high costs. However, picking and choosing which health conditions receive the most or least benefits can be likened to picking and choosing to lay off employees based on their race. I think you know the direction that goes! And for the record, even though it's the insurance company that created the discriminatory plan, if you offer that plan to your employees, it lands you straight on the liability hook (ouch).

Our team of government specialists are anxious to hear from you. Great questions keep pouring in. According to a U.S. Census report, the number of Americans without health insurance rose from 41.2 million to 45.8 million (14.6% to 15.7%) between 2001 and 2004. Send your questions to Watercooler.Counsel@eeoc.gov. Rich is a former Supervisory Investigator and Malinda is a current Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.


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