*The U.S. Equal Employment Opportunity Commission*

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# Questions and Answers About Cancer in the Workplace and the Americans with Disabilities Act (ADA)

## Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

list of specific changes to the ADA

## INTRODUCTION

The Americans with Disabilities Act (ADA) is a federal lawthat prohibits discrimination against individuals with disabilities.� Title Iof the ADA covers employment by private employers with 15 or more employees aswell as state and local government employers.� The Rehabilitation Act providesthe same protections related to federal employment.� In addition, most stateshave their own laws prohibiting employment discrimination on the basis ofdisability.� Some of these state laws apply to smaller employers and may provideprotections in addition to those available under the ADA.[1]

The U.S. Equal Employment Opportunity Commission (EEOC)enforces the employment provisions of the ADA.[2]�This is the fourth in a series of question-and-answer documents addressingparticular disabilities in the workplace.[3]�It explains how the ADA might apply to job applicants and employees who have orhad cancer.� In particular, this guide explains: 
    - when cancer is a disability under the ADA;
    - when an employer may ask an applicant or employee     questions about his or her cancer and how it should treat voluntary     disclosures;
    - what types of reasonable accommodations employees with     cancer may need; and,
    - how employers can ensure that they do not discriminate     against applicants and employees with cancer.

## GENERAL INFORMATION ABOUT CANCER

Approximately 40 percent of the more than one millionAmericans diagnosed with some form of cancer each year are working-age adults,and nearly 10 million Americans have a history of cancer.[4]

Despite significant gains in cancer survival rates and thepassage of the ADA, people with cancer still experience barriers to equal jobopportunities.� One reason individuals with cancer face discrimination at workis their supervisors' and co-workers' misperceptions about their ability towork during and after cancer treatment.� Even when the prognosis is excellent,some employers expect that a person diagnosed with cancer will have longabsences from work or not be able to focus on duties. Today, however, unlike onehundred years ago when cancer was a literal "death sentence," most working-agecancer survivors return to work and have relatively the same productivity ratesas other workers.[5]

**1.�� What is cancer?**

Cancer is a group of related diseases characterized by theout-of-control growth of abnormal cells caused both by external and internalfactors such as chemicals, radiation, immune conditions, and inheritedmutations.� Different cancers have different risk factors.� Many people withone or more risk factors never develop cancer, while others with this diseasehave no known risk factors.� Different types of cancer vary in their rate ofgrowth, pattern of spreading throughout the body, and response to treatment.�Many types of cancer may be cured by surgery, radiation, chemotherapy, hormonetherapy, and/or bone marrow transplant.[6]

Cancer's effect on an individualdepends on many factors, including the primary site of the cancer, stage of thedisease, age and health of the individual, and type of treatment(s).� The mostcommon symptoms and side effects of cancer and/or its treatment are pain,fatigue, problems related to nutrition and weight management, nausea, vomiting,hair loss, low blood counts, memory and concentration loss, depression, andrespiratory problems.[7]

**2.�� When is cancer adisability under the ADA?**

Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person's majorlife activities.� 

**Example:**Following alumpectomy and radiation for aggressive breast cancer, a computer salesrepresentative experienced extreme nausea and constant fatigue for six months.�She continued to work during her treatment, although she frequently had to comein later in the morning, work later in the evening to make up the time, andtake breaks when she experienced nausea and vomiting.�� She was too exhaustedwhen she came home to cook, shop, or do household chores and had to rely almostexclusively on her husband and children to do these tasks. �This individual'scancer is a disability because it substantially limits her ability to care forherself.

**Example:�**A telephonerepairman with an advanced form of testicular cancer has chemotherapy andsurgery that render him sterile.� He is an individual with a disability underthe ADA because he is substantially limited in the major life activity ofreproduction.

Even when the cancer itself doesnot substantially limit any major life activity (such as when it is diagnosedand treated early), it can lead to the occurrence of other impairments that maybe disabilities.� For example, sometimes depression may develop as a result ofthe cancer, the treatment for it, or both.� Where the condition lasts longenough (i.e., for more than several months) and substantially limits amajor life activity, such as interacting with others, sleeping, or eating, itis a disability within the meaning of the ADA.

Cancer also may be a disabilitybecause it was substantially limiting some time in the past.

**Example:**�A companypresident was hospitalized for 30 days immediately following his diagnosis ofblood cancer.�� Because his treatment, which included chemotherapy and a bonemarrow transplant, weakened his immune system he was unable to care for himselffor six months and had to avoid interactions with almost everyone except hisdoctors, nurses, and immediate family members.� This individual has a record ofa disability.

Finally, cancer is a disabilitywhen it does not significantly affect a person's major life activities, but theemployer treats the individual as if it does.

**Example:**�An individual witha facial scar from surgery to treat skin cancer applies to be an airlinecustomer service representative.� The interviewer refuses to consider him forthe position because she fears that his scar will make customersuncomfortable.� In basing her decision not to hire on the presumed negativereactions of customers, the interviewer is regarding the applicant assubstantially limited in working in any job that involves interacting with thepublic.

**Example:�**After making a joboffer, an employer learns that an applicant's genetic profile reveals anincreased susceptibility to colon cancer.� Although the applicant does notcurrently have and may never in fact develop colon cancer, the employerwithdraws the job offer solely based on concerns about productivity, insurancecosts, and attendance.� The employer is treating the applicant as if he has a disability.

Under the ADA, the determinationof whether an individual currently has, has a record of, or is regarded ashaving a disability is made on a case-by-case basis.

## OBTAINING, USING, ANDDISCLOSING MEDICAL INFORMATION

Title I of the ADA limits an employer's ability to askquestions related to disability or conduct medical examinations at threestages: pre offer, post offer, and during employment.

### Job Applicants

#### Before an Offer of Employment is Made

**3.�� May an employer ask a jobapplicant whether he has or had cancer or about treatment related to cancerprior to making a job offer?**

No.� An employer may not askquestions about an applicant's medical condition or require an applicant tohave a medical examination before it makes a conditional job offer.� This meansthat an employer *cannot*ask an applicant questions such as:
    - whether she has or ever had     cancer;
    - whether she is undergoing     chemotherapy or radiation or taking medication used to treat or control     cancer ( e.g. , Tamoxifen) or ever has done so in the past; or,
    - whether she ever has taken leave     for surgery or medical treatment, or how much sick leave she has taken in     the past year.

Of course, an employer may ask anapplicant who appears to be sick or tired how he is feeling.� An employer alsomay ask any applicant questions pertaining to the performance of the job, suchas:
    - whether he can lift up to 50     pounds;
    - whether he can travel out of     town; or,
    - whether he can work rotating     shifts.

The ADA also does not requireapplicants to voluntarily disclose that they have or had cancer or anotherdisability *unless* they will need a reasonable accommodation for theapplication process (e.g., additional time to take a pre-employment testdue to fatigue caused by radiation treatments).� Some individuals with cancer,however, choose to disclose their condition to dispel any rumors or speculationabout their appearance, such as emaciation or hair loss.� Others choose todisclose their cancer when applying for a job because they will need areasonable accommodation to do the job (e.g., flexible working hours toreceive or recover from treatment).� A person with cancer also is permitted torequest an accommodation after becoming an employee, even if she did not askfor one when applying for the job or after receiving the job offer.

**4.�� May an employer ask anyfollow-up questions if an applicant voluntarily reveals that he has or hadcancer?**

An employer may not ask an applicant who has voluntarily disclosed thathe has cancer any questions about the cancer, its treatment, or its prognosis.�However, if an applicant voluntarily discloses that he has cancer and theemployer reasonably believes that an accommodation will be required to performthe job, an employer may ask whether the applicant will need an accommodation and,if so, what type. 

Example:� An individual applies for a retail clerk position ata 24-hour convenience store.� The job posting indicated that the store wasseeking to hire a clerk to work from 2:00 p.m. to 10:00 p.m.� During theinterview, the applicant mentions that the hours are ideal for him because hewill not have to make any adjustments to his scheduled radiation treatments forprostate cancer, which occur in the early morning and are expected to continuefor the next five weeks.� He also mentions that he has not had any side effectsduring his first three weeks of treatment.� Because the applicant is notrequesting a reasonable accommodation, and there is no reason to believe hewill require one, the interviewer cannot ask him any questions about the needfor reasonable accommodation.

Example: An applicant for a bank teller position arrives atthe job interview wearing a scarf on her head and explains that it is becauseshe is currently undergoing chemotherapy and has lost her hair.� The bank has apolicy of generally prohibiting tellers from wearing hats, caps, or headscarveswhile at work.� The interviewer may explain the workplace policy and ask theapplicant whether she may need a reasonable accommodation (i.e.,modification of the policy until her hair grows back).� 

The employer also must keep any information an applicant disclosesabout his medical information confidential.� (See "Keeping Medical InformationConfidential" on p. 8.)

#### After an Offer of Employment isMade

Once an employer has made a joboffer, it may ask questions about an applicant's health and may require amedical examination as long as it treats all applicants for the same type ofposition in the same manner.� A job offer is not considered "real," however,until the employer has obtained and evaluated all readily available non-medicalinformation. 

**5.�� What should an employerdo when it learns that an applicant has or had cancer after she has beenoffered a job?**

The fact that an applicant has orhad cancer may not be used to withdraw a job offer if the applicant is able toperform the fundamental duties ("essential functions") of a job, with orwithout reasonable accommodation, and without posing a direct threat to safety. (A "direct threat" is a significant risk of substantial harm to theindividual or others in the workplace that cannot be reduced or eliminatedthrough reasonable accommodation.� (See Questions 6, 7, and 18 below.) Theemployer, therefore, should evaluate the applicant's *present* ability toperform the job rather than make unfounded assumptions. To do this, an employeralso may ask the applicant medically related follow-up questions about hiscancer, such as whether he is undergoing treatment or experiencing any sideeffects that could interfere with the ability to do the job or that mightrequire a reasonable accommodation.

Example:�An applicant is asked to complete a medical historyquestionnaire and have a medical examination after receiving an offer of asecurity guard position.� In the section of the questionnaire asking aboutvarious current and/or past medical conditions, the applicant indicates thatshe was diagnosed with very early-stage colon cancer six years ago.� When thedoctor conducting the medical exam asks medically related follow-up questions aboutthe possibility of recurrence, the applicant explains that she did not requireany further treatment after the malignant polyp was removed and that her annualcolonoscopies for the past five years have shown no evidence of disease.�Because the applicant is able to perform the duties of a security officer withoutposing a direct threat, the employer may not withdraw the job offer.� 

### Employees

The ADA strictly limits thecircumstances under which an employer may ask questions about an employee'smedical condition or require the employee to have a medical examination.� 

**6.�� When may an employer askan employee if cancer, or some other medical condition, may be affecting herability to do her job?**

An employer may ask questions orrequire an employee to have a medical examination only when it has a legitimatereason to believe that cancer, or some other medical condition, may beaffecting the employee's ability to do her job, or to do so safely.� Sometimesan employer will be able to ask for medical information because it knows thatthe person has cancer and reasonably believes that the cancer itself, itstreatment, and/or side effects are causing the employee's performanceproblems.� At other times, an employer may ask for medical information when ithas observed symptoms, such as fatigue or difficulties with memory orconcentration, or has received reliable information from someone else (e.g., afamily member or co-worker), indicating that the employee may have a medicalcondition that is causing performance problems.

**Example:�**An attorneycomplains to a law firm partner that, several times a day for the past month,the receptionist has missed numerous phone calls and has not been at her deskto greet clients.� The attorney explains that she has been reluctant to sayanything because she knows that around the same time the performance problemsbegan, the receptionist started undergoing radiation for some type of cancer.�The partner may ask the receptionist questions about whether her cancertreatments are causing the performance problems and, if so, how long thetreatments are expected to continue and whether she needs a reasonableaccommodation.� 

Poor job performance, however,often is unrelated to a medical condition and should be handled in accordancewith an employer's existing employment policies. 

**Example:�**A normallyreliable computer programmer, who had surgery several years ago to treatearly-stage thyroid cancer, lately has been calling in sick on Mondaymornings.� This pattern started shortly after the programmer began workingweekends as a bartender.� The supervisor can counsel the programmer about hisattendance problems but may not ask him questions about his medical condition(including whether his cancer has returned) unless there is evidence that hisabsences stem from a medical condition.

**7.�� May an employer require anemployee on leave because of cancer to provide documentation or have a medicalexam before allowing her to return to work?**

Yes.� If the employer has areasonable belief that the employee may be unable to perform her job or may posea direct threat to herself or others, the employer may ask for medicalinformation.� However, the employer may obtain only the information needed tomake an assessment of the employee's *present*ability to perform her joband to do so safely.

**Example:**A newspaperreporter, who has been on leave for eight months receiving experimentaltreatment for non-aggressive lung cancer, notifies her employer that she willbe able to return to work in two weeks but will need to continue her treatmentfor four more months. Because the reporter's job frequently requires her totravel nationally and internationally on short notice, the employer may ask herto provide a doctor's note or other documentation indicating whether she cantravel during the next four months and, if so, how long she can be away.� 

**8.�� Are there any otherinstances when an employer may ask an employee about cancer?**

An employer may ask an employeewith cancer:
    - for information, including     reasonable documentation, explaining the need for a reasonable     accommodation requested because of cancer; 
    - for medical information that is     part of a voluntary wellness program; [8] �     
    - to justify the use of sick leave     by providing a doctor's note or other explanation, as long as all     employees who use sick leave are required to do the same and the     information requested does not exceed what is necessary to verify that     sick leave is being used appropriately; and,
    - for periodic updates on his     condition if the employee has not provided an exact or fairly specific     date of return, or where the employee requests leave in excess of that     which the employer already has granted. [9] 

Of course, an employer may callemployees on extended leave to check on their progress or to express concernfor their health.[10]

### Keeping Medical InformationConfidential

With limited exceptions, anemployer must keep confidential any medical information it learns about anapplicant or employee.� Under the following circumstances, however, an employermay disclose that an employee has cancer:
    - to supervisors and managers, if     necessary to provide a reasonable accommodation or meet an employee's work     restrictions;
    - to first aid and safety     personnel if an employee would need emergency treatment or require some     other assistance at work;
    - to individuals investigating     compliance with the ADA and similar state and local laws; and,
    - as needed for workers'     compensation or insurance purposes (for example, to process a claim).

**9.�� May an employer explain toother employees that their co-worker is allowed to do something that generallyis not permitted (such as work at home or take periodic rest breaks) becauseshe has cancer?**

No.� Telling co-workers that anemployee is receiving a reasonable accommodation amounts to a disclosure of theemployee's disability.�� Rather than disclosing that the employee is receivinga reasonable accommodation, the employer should focus on the importance ofmaintaining the privacy of all employees and emphasize that its policy is torefrain from discussing the work situation of any employee with co-workers.Employers may be able to avoid many of these kinds of questions by training allemployees on the requirements of EEO laws, including the ADA.

**10.� If an employee has lost alot of weight or appears fatigued, may an employer explain to co-workers thatthe employee has cancer?**

No.� Although the employee'sco-workers and others in the workplace may be concerned about the employee'shealth, an employer may not reveal that the employee has cancer.� 

**Example:�**A hair stylist,who has been unable to eat regularly because he is undergoing chemotherapy formelanoma, has lost 30 pounds.� His co-workers and other clients are gossipingabout whether he is HIV-positive or has AIDS.� The salon owner should act to discouragethe rumors and gossip but may not disclose that the employee has cancer.

An employer also may not explainto other employees why an employee with cancer has been absent from work. 

## ACCOMMODATING EMPLOYEES WITH CANCER

The ADA requires employers toprovide adjustments or modifications to enable people with disabilities toenjoy equal employment opportunities unless doing so would be an undue hardship(i.e., a significant difficulty or expense).� Accommodations varydepending on the needs of an individual with a disability.� Not all employeeswith cancer will need an accommodation or require the same accommodations, andmost of the accommodations a person with cancer might need will involve littleor no cost.� An employer must provide a reasonable accommodation that is neededbecause of the limitations caused by the cancer itself, the side effects ofmedication or treatment for the cancer, or both.� For example, an employer mayhave to accommodate an employee who is unable to work while she is undergoingchemotherapy or who has depression as a result of cancer, the treatment for it,or both.� An employer, however, has no obligation to monitor an employee'smedical treatment or ensure that he is receiving appropriate treatment.

**11.� What types of reasonableaccommodations may employees with cancer need?**

Some employees with cancer mayneed one or more of the following accommodations:
    - leave for doctors' appointments and/or to seek or recuperate fromtreatment [11]
    - periodic breaks or a private area to rest or to take medication 
    - adjustments to a work schedule **Example:�**An engineerworking independently on a long-term project has to undergo radiation forcancer every weekday morning for the next eight weeks. The employer shouldconsider whether it could provide a flexible schedule (e.g., allow himto come in later or work part-time) to accommodate his treatment. 
    - permission to work at home [12]
    - modification of� office temperature
    - permission to use work telephone to call doctors 
    - reallocation or redistribution of marginal tasks to anotheremployee **Example:�**A janitor, whohad a leg amputated to cure bone cancer, can perform all of his essential jobfunctions without accommodation but has difficulty climbing into the attic tooccasionally change the building's air filter.� The employer likely canreallocate this marginal function to one of the other janitors.  
    - reassignment to another job **Example:�**As a result oflymphedema[13]from her mastectomy, a truck driver for a courier service no longer can liftanything heavier than 10 pounds and, therefore, informs her employer that she isunable to do her current job, which requires her to load and unload packagesweighing up to 70 pounds. �The employer must consider whether a vacant positionexists for which the driver is qualified and to which she can be reassigned asa reasonable accommodation, absent undue hardship.� The vacant position must beequivalent in terms of pay and status to the original job, or as close aspossible if no equivalent position exists.� The position need not be apromotion, although the employee should be able to compete for any promotionfor which she is eligible.� The employer also does not have to "bump" anotheremployee to create a vacancy. 

Some employees with cancer mayneed accommodations other than the ones listed above.� The employer, therefore,should discuss with the employee her particular limitations and whether thereis anything the employer can do to enable her to work.� For example, anemployer might explore the possibility of providing certain equipment (e.g.,a chair or stoolto help with fatigue), atemporary transfer, or changes in how work is performed (e.g., alteringwhen or how a function is done to help with concentration problems).

**12.� How does an employee withcancer request a reasonable accommodation?**

There are no "magic words" that aperson has to use when requesting a reasonable accommodation.� A person simplyhas to tell the employer that she needs an adjustment or change at work becauseof her cancer.

**Example:�**A nurse tells her supervisorthat she is having trouble working 12 hours a day because of medical treatmentsshe is undergoing for breast cancer.� This is a request for reasonableaccommodation.

A request for reasonableaccommodation also can come from a family member, friend, health professional,or other representative on behalf of a person with cancer.� 

**13.� May an employer requestdocumentation when an employee who has cancer needs a reasonable accommodation?**

Yes.� An employer may requestreasonable documentation where a disability or the need for reasonableaccommodation is not obvious.� An employer, however, is entitled only todocumentation sufficient to establish that the employee's cancer is adisability and that explains why an accommodation is needed.� A request for anemployee's entire medical record, for example, would be inappropriate, as itlikely would include information about conditions other than the employee'scancer.

**Example:**� An employee asksfor leave to receive treatment for colon cancer.� His oncologist provides aletter indicating that treatment of the condition will require surgery toremove a portion of the large intestines, along with chemotherapy andradiation.� The employee will be totally unable to work for the next six monthsand, even after the cancer has been treated and the employee can return towork, he will have to use a colostomy bag for the rest of his life for wasteelimination.� The oncologist's letter concludes that, although he hopes theemployee will be able to return to a fairly normal life-style following histreatments, he will need to remain under close medical supervision for fiveyears to detect and prevent any recurrence. The doctor's letter is sufficientto demonstrate that the employee has a disability and needs the reasonableaccommodation of leave.� If, after returning to work, the employee makes asubsequent accommodation request related to his colon cancer and the need foraccommodation is not obvious, the employer may ask for documentation (e.g.,a �doctor's note) demonstrating why the accommodation is needed but may not askfor documentation establishing that the employee's colon cancer is adisability. 

**14.� Does an employer have togrant every request for a reasonable accommodation?**

No. �An employer does not have toprovide an accommodation that would result in "undue hardship."� Undue hardshipmeans that providing the reasonable accommodation would result in significantdifficulty or expense.� However, if a requested accommodation is too difficultor expensive, an employer should determine whether there is another easier orless costly accommodation that would meet the employee's needs.� 

An employer also is not requiredto provide the reasonable accommodation that an individual wants but, rather,may choose among reasonable accommodations as long as the chosen accommodationis effective.� If more than one accommodation is effective, the employee'spreference should be given primary consideration.

**15.� May an employer berequired to provide more than one accommodation for the same employee withcancer?**

Yes.� The duty to provide areasonable accommodation is an ongoing one. Although some employees with cancermay require only one reasonable accommodation, others may need more than one.�For example, an employee with cancer may require leave for surgery andsubsequent recovery but may be able to return to work on a part-time ormodified schedule while receiving chemotherapy.� An employer must consider eachrequest for a reasonable accommodation and determine whether it would beeffective and whether providing it would pose an undue hardship.� 

**16.� Is an employer required toremove one or more of a job's essential functions to accommodate an employeewith cancer?**

No.� An employer never has toreallocate essential functions as a reasonable accommodation but can do so ifit wishes.� In fact, it may be mutually beneficial to the employer and employeeto remove an essential function that the employee is unable to do, at least ona temporary basis, because of limitations caused by the cancer, its treatment,and/or side effects.

**Example:�**A doctor becomestoo fatigued from cancer treatments to perform surgery, but she still is ableto conduct surgical consults and perform her research and teaching duties.� Heremployer may temporarily remove her from the surgery schedule, rather thanplacing her on leave, while allowing her to continue performing her otherduties. 

**17.��� May an employerautomatically deny a request for leave from someone with cancer because theemployee cannot specify an exact date of return?**

No. �Granting leave to an employeewho is unable to provide a fixed date of return may be a reasonableaccommodation.� Although many types of cancer can be successfully treated --and often cured -- the treatment and severity of side effects often areunpredictable and do not permit exact timetables. An employee requesting leavebecause of cancer, therefore, may be able to provide only an *approximate*date of return (e.g., "in six to eight weeks," "in about three months").�In such situations, or in situations in which areturn date must be postponed because of unforeseen medical developments,employees should stay in regular communication with their employers to informthem of their progress and discuss the need for continued leave beyond whatoriginally was granted.� The employer also has the right to require that theemployee provide periodic updates on his condition and possible date ofreturn.� After receiving these updates, the employer may reevaluate whethercontinued leave constitutes an undue hardship.

## CONCERNS ABOUT SAFETY

When it comes to safety, anemployer should be careful not to act on the basis of myths, fears,generalizations, or stereotypes about cancer.� Instead, the employer shouldevaluate each individual on his knowledge, skills, experience, and the extentto which cancer affects his ability to work in a particular job.�� 

**18.� When may an employerprohibit a person who has cancer from performing a job because of safetyconcerns?**

An employer only may exclude an individualwith cancer from a job for safety reasons when the individual poses a directthreat.� A "direct threat" is a significant risk of substantial harm to theindividual or others that cannot be eliminated or reduced through reasonableaccommodation.� This determination must be based on objective, factualevidence, including the best recent medical evidence and advances to treat andcure cancer.� 

In making a direct threatassessment, the employer must evaluate the individual's present ability tosafely perform the job.� The employer also must consider: 

(1)������� the duration of therisk; 

(2) ������ the nature and severityof the potential harm; 

(3) ������ the likelihood that thepotential harm will occur; and, 

(4) ������ the imminence of thepotential harm. 

The harm must be serious andlikely to occur, not remote and speculative.� Finally, the employer mustdetermine whether any reasonable accommodation would reduce or eliminate therisk.

**Example:�**A school districtmay not demote a high school principal, who has been successfully treated fornon-Hodgkin's lymphoma, because it fears that the stress of the job may triggera relapse.

## HARASSMENT

The ADA also prohibits harassment based on disability justas other federal laws prohibit harassment based on race, sex, color, nationalorigin, religion, or age.� Harassment is actionable under the ADA when a person is subjected to offensive conduct that is sufficiently severe or pervasiveto create a hostile or abusive work environment.� Employees who believe thatthey have been harassed because of cancer may file a charge with the EEOC asdescribed below.

## LEGAL ENFORCEMENT

Any person who believes that his or her employment rightshave been violated on the basis of disability and wants to make a claim againstan employer must file a charge of discrimination with the EEOC.� A third partyalso may file a charge on behalf of another person claiming to be aggrieved.�For example, a family member or other representative can file a charge onbehalf of someone with cancer who may be unable to file a charge.� The chargemust be filed by mail or in person with the local EEOC office within 180 daysfrom the date of the alleged violation.� The 180-day filing deadline isextended to 300 days if a state or local anti-discrimination law also coversthe charge.

The EEOC will send the parties a copy of the charge and mayask for responses and supporting information.� Before a formal investigation,the EEOC may select the charge for EEOC's mediation program. Both parties mustagree to mediation, which may prevent a time-consuming investigation of thecharge.� Participation in mediation is free, voluntary, and confidential.

If mediation is unsuccessful, the EEOC investigates the charge to determine     if there is "reasonable cause" to believe discrimination has occurred.� If     reasonable cause is found, the EEOC will then try to resolve the charge with     the employer.� In some cases, where the charge cannot be resolved, the EEOC     will file a court action.� If the EEOC finds no discrimination, or if an attempt     to resolve the charge fails and the EEOC decides not to file suit, it will     issue a notice of a "right to sue," which gives the charging party 90 days     to file a court action.� A charging party also can request a notice of a "right     to sue" from the EEOC 180 days after the charge first was filed with the EEOC     and may then bring suit within 90 days after receiving the notice.� For a     detailed description of the process, visit our web site at http://www.eeoc.gov/charge/overview_charge_filing.html.�For     issues relating to federal employment, please refer to our web site at http://www.eeoc.gov/facts/fs-fed.html.

## Retaliation

The ADA prohibits retaliation by an employer against someonewho opposes discriminatory employment practices, files a charge of employmentdiscrimination, or testifies or participates in any way in an investigation,proceeding, or litigation.� Persons who believe that they have been retaliatedagainst may file a charge of retaliation with the EEOC as described above.

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[1]For example, disability laws in California, Pennsylvania, New Jersey, and New York apply to employers with fewer than 15 employees. The California disabilitiesstatute also specifically covers individuals who currently have cancer or havehad cancer in the past.� 

[2]The EEOC also coordinates compliance with Executive Order 13145, whichprohibits discrimination in federal employment based on protected geneticinformation, such as information about the occurrence of a disease (such ascancer) or a medical condition in an applicant's or employee's family members.�See EEOC Policy Guidance on Executive Order 13145: To Prohibit Discriminationin Federal Employment Based on Genetic Information (July 26, 2000) at www.eeoc.gov/policy/docs/guidance-genetic.html.

[3]See Questions and Answers About Diabetes in the Workplace and the Americanswith Disabilities Act (ADA) at www.eeoc.gov/facts/diabetes.html,Questions and Answers About Epilepsy in the Workplace and the Americans withDisabilities Act (ADA) at www.eeoc.gov/facts/epilepsy.html,and Questions & Answers About Persons with Intellectual Disabilities in theWorkplace and the Americans with Disabilities Act, at www.eeoc.gov/facts/intellectual_disabilities.html.

[4]American Cancer Society (ACS), Cancer Facts & Figures 2005.

[5]See George M. Wheatley et al., The Employment of Persons with a History ofTreatment for Cancer, 33 Cancer 441, 445 (1974)(concluding that "the selectivehiring of persons who have been treated for cancer, in positions for which theyare qualified, is a sound industrial practice").

[6]ACS, Cancer Reference Information at http://www.cancer.org.

[7]Id.

[8]The ADA allows employers to conduct voluntary medical examinations andactivities, including obtaining voluntary medical histories, which are part ofan employee wellness program (such as a smoking cessation or cancer detectionscreening program), as long as any medical records (including, for example, theresults of a mammogram or other diagnostic tests) acquired as part of theprogram are kept confidential.

[9]*See* Enforcement Guidance:� Disability-Related Inquiries and MedicalExaminations of Employees Under the Americans with Disabilities Act (ADA) atQuestion 16 (July 26, 2000) at www.eeoc.gov/policy/docs/guidance-inquiries.html.

[10]Id.

[11]An employee who needs continuing or intermittent leave, or a part-time ormodified schedule, as a reasonable accommodation also may be entitled to leaveunder the Family and Medical Leave Act (FMLA).� For a discussion of howemployers should treat situations in which an employee may be covered both bythe� FMLA and the ADA, see**Questions 21 and 23 in the EEOC EnforcementGuidance on Reasonable Accommodation and Undue Hardship Under the Americanswith Disabilities Act (rev. Oct. 17, 2002) at 

www.eeoc.gov/policy/docs/accommodation.html.

[12]*See* EEOC fact sheet on Telework as a Reasonable Accommodation at www.eeoc.gov/facts/telework.html.

[13]Treatment for cancer may have some permanent effects. In breast cancer, forexample, removal of lymph nodes makes women subject to lymphedema, a painfulswelling in the arms and hands.

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*This page was last modified on August 03, 2005.*

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