Richard J. Morgan, Editor
McNair Law Firm, P.A.

Vol. 16, No. 8
May 2008

ASK REG

'Cancer' is a scary word in more ways than one

Reggie Gay

Q We recently interviewed an applicant for an open job with our company. Without being questioned, he volunteered that he has cancer. No job offer has been extended. What risks do we face if we don't offer him the position?

A While I certainly mean no disrespect to anyone suffering from cancer and I have the utmost admiration for people battling the disease, the word "cancer" can cause a scare for employers. Although I believe most employers wouldn't intentionally discriminate against a job applicant with cancer, you must be careful to avoid potential liability.

In addressing your question, we must look primarily at the Americans with Disabilities Act (ADA). In its broadest sense, the ADA prohibits employment discrimination against individuals who are disabled but still capable of performing the essential functions of the job in question. The ADA defines "disability" to include a physical or mental impairment that substantially limits one or more major life activities. Cancer has been recognized as a physical impairment by the Equal Employment Opportunity Commission (EEOC).

Under the ADA, it's unlawful to ask a job applicant if he has a disability or inquire about the nature or extent of a disability. The EEOC has stated employers may not ask questions on an application or in an interview about whether an applicant will need reasonable accommodations for a job because that inquiry is likely to elicit information about whether he has a disability. Nevertheless, the agency's revised guidance provides that if you reasonably believe an applicant will need reasonable accommodation to perform a job, you may ask him certain limited questions, including whether he needs reasonable accommodation and what type of accommodation will allow him to perform the functions of the job.

Keep in mind that you can ask those questions only if (1) you reasonably believe the applicant will need accommodation because of an obvious disability, (2) you reasonably believe he will need accommodation because of a hidden disability that he has voluntarily disclosed, or (3) the applicant has voluntarily disclosed that he needs reasonable accommodation to perform the job.

Since the applicant voluntarily disclosed to you what is likely a hidden disability (cancer), you should ask whether he needs reasonable accommodation and what type of reasonable accommodation he will require to perform the essential functions of the job. Once he provides an answer, further questioning should stop.

The ADA also applies to "qualified individual[s] with a disability." Therefore, an applicant with a disability must be able to perform, with or without reasonable accommodation, the essential functions of the job he desires and for which he possesses the requisite skill, experience, education, and other job-related requirements. In general, you should use a two-step process to determine whether an applicant is a qualified individual.

First and foremost, determine whether the applicant satisfies the job's prerequisites. For example, if certain educational requirements, certifications, or degrees are necessary for the position, he must possess those requirements to be "qualified" for it. If he satisfies the job's prerequisites, you should go on to the next step and determine whether he can perform the essential functions of the job, with or without reasonable accommodation.

Since we don't know the type of cancer the applicant has, the extent of the disease, or whether he would even need a reasonable accommodation, it's difficult to answer your question directly. Just remember that you must consider the ADA in making your hiring decision, and you shouldn't discriminate against such an individual. If he is qualified for the job, you must consider ― and you may be required to provide ― reasonable accommodations like an adjustable work schedule for chemotherapy treatments or other job modifications. If you choose another applicant over the candidate with cancer, you should have distinct and verifiable nondiscriminatory reasons for your decision.

Simply put, the fact that you have been informed that an applicant has cancer could subject your company to liability for discrimination under the ADA. As a result, make only the appropriate inquiries, and carefully consider the applicant along with other candidates for the position. Make your decision only after carefully considering all of the factors.

Please send your questions about work-related issues to Reggie Gay at rgay@mcnair.net.

Copyright 2008 M. Lee Smith Publishers LLC

SOUTH CAROLINA EMPLOYMENT LAW LETTER is not intended to provide legal advice, which can be given only after consideration of the facts of a specific situation.