Commentary (Monaco/Smith): Are Cancer Patients Subject to Employment Discrimination?

We commend the authors for an earnest, if tentative and incomplete, acknowledgment that information on discrimination in the initial or continued employment of cancer patients and survivors after enactment of the Americans with Disabilities Act (ADA) needs to be gathered and reported. This subject requires the type of in-depth study with which oncologists are familiar and which characterized follow-up of employment discrimination prior to enactment of the ADA [1-3].

The authors inappropriately characterize the available evidence of discrimination as "anecdotal" and support that assumption and the assumption of a cancer "stigma" by citing congressional hearings that are 6 to 10 years out of date. They counter with their survey evidence, which is equally anecdotal, based on what appears to be the lack of validation criteria built into the study instrument.

Classifying discrimination as anecdotal in the face of the overwhelming evidence to the contrary from past studies is a slap in the face to cancer patients. It assumes that they are cheats or deluded. Are the authors implying that cancer patients are abusing the ADA?

Study Exclusions Are Unfortunate

The authors' exclusion of patients with brain tumors and those under age 18 years because employment rates in these groups are hypothesized as being quite low, without cited substantiation, is unfortunate. The Equal Employment Opportunity Commission's first case under the ADA was on behalf of a brain cancer survivor who was immediately fired after diagnosis; the agency's jury verdict was so large that it was reduced on appeal [4]. By excluding this group, the authors miss the opportunity to determine whether employment of brain tumor survivors is so low because they are more discriminated against than any other group of survivors.

Exclusion of patients under age 18 at diagnosis focuses concentration on cancer patients who are entrenched in employment rather than on those who are seeking employment or preparing to be employed post-cancer, and diminishes the power of observations on aspects of the ADA related to the important effect of cancer "history." It is not apparent whether patients treated before age 18 who are survivors today are covered in the survey discussed in this article. This relatively disfrancised population treated at a "tender age" and without a work history prior to cancer can readily be "labeled" and "selected out" and may need more psychosocial and work preparation interventions than does the population that is working when diagnosed [5]. Selection out of patients treated as children or adolescents ignores the real interest of most teenagers to find part-time work to help out their families, who are often devastated by the expenses of treatment [6].

Survey Fails to Address Patients' Awareness of Rights Under the ADA

It has been reported that 40% of cancer patients are unaware of their rights under the ADA [7]. The survey does not appear to accommodate issues of awareness or misconceptions that are key to designing the authors' intended educational interventions.

The article states that 12% of the study participants cited cancer as the reason why they were not hired. However, it fails to indicate:

• Whether this was based on fact, or on the survivor's assumption?
• If it was fact, did the survivor file a discrimination charge and/or lawsuit?
• Did the authors have a process in place to research/validate the subjects' observations?

More Information on Reassignments Should Have Been Obtained

The authors state that 35% of the respondents felt that reassignment was beneficial, but that it is unclear whether job duties were reassigned to other employees because of a "presumed inability" to perform job functions. A presumption of inability to perform a job function is an illegal assumption under the ADA. Nor can employers force reasonable accommodations (such as job function reassignment) on employees who do not wish them. Thus, the survey should have determined whether the following ADA requirements were met:

• Was reassignment requested, or was it forced on the cancer patient?
• Did the employee request other accommodations?
• If so, how did the employer respond to those requests?

These ADA criteria were not accommodated, and the authors do not produce comparative data that job function reassignment was an effective, reasonable accommodation, let alone the most effective or the most preferred accommodation. They also fail to mention the costs associated with the various accommodations provided or denied.

Altered Benefits and Corporate Policies

The article states that 22% of the respondents considered their altered benefits to be beneficial. Does that mean that 78% did not? Could that possibly be a statistically significant number? What benefits are the authors referring to: health insurance, pensions, life insurance, and/or disability coverage?

Also, the authors state that large companies were more likely to have formal policies in place to regulate these events. Did they request or read any company policies? More importantly, they did not address the underlying question under the ADA: Are these policies legal?

Absence of Discrimination Unsubstantiated

The authors conclude, without substantiation, that some of the "positive responses [about their employability] could result from denial regarding the deleterious effects of their medical condition or wishful thinking about their ability to work." Their conclusion that survivors are self-deluded about their employment chances is the height of arrogance. Could it be that these survivors were deluded from being on long-term disability benefits? Had they tried vocational rehabilitation8 but found it too difficult to be retrained in another vocation?

Patients' frame of mind and the identification of opportunities available to them and whether or not they took advantage of those opportunities could have been accommodated in a survey instrument that provided for individual interviews when necessary.

Reasons for Discharge Not Addressed

Although the authors state that 25% of responders were discharged, they do not address the reasons for discharge, which are central to patients' rights violation under the ADA:

• Why were the survey respondents discharged?
• Were they unable to meet the attendance policy?
• Did the employer's health insurance premiums increase?
• Were the discharged employees considered contagious or depressing?
• Did any of them file an administrative complaint or lawsuit?
• What was the outcome of the charge or lawsuit?
• How does this 25% rate compare to the discharge rate of people diagnosed with other disabilities, such as HIV infection, diabetes, and multiple sclerosis?
• Are cancer patients the targets of more or less discrimination than other people with disabilities?

Revised, Expanded Survey Instrument Needed

The authors do not provide a copy of their survey instrument. From the results reported, the survey does not appear to be structured to track ADA criteria and statutes related to discrimination against cancer patients' rights and opportunities. We believe that the authors' effort underscores the need for the design and wide use of a complete, validated survey document that considers the ADA, the Family and Medical Leave Act, entitlement programs, and access to vocational rehabilitation and retraining. If an expanded, revised model survey instrument with a validation process were available, treatment centers could become partners with their patients in providing rolling data on the "real world" of employment as it pertains to the ADA and related federal statutes and also could document the behavior of companies not subject to those statutes.

References:

1. Hays D, Landsverk J, Ruccione K, et al: Employment problems and workplace experiences of childhood cancer survivors, in Late Effects of Treatment for Childhood Cancer, ed Green D, D'Angio GJ pp 171-178. Wiley-Liss, New York, New York 1992.

2. Hays D: Adult survivors of childhood cancer: Employment and insurance issues in different age groups. Cancer 71:3303-3309, 1993.

3. Wheatley G, Cunnick W, Wright B, et al: The employment of persons with a history of treatment for cancer. Cancer 33(2):441-445, 1974.

4. EEOC & Charles Wessel v AIC Security Investigations, Ltd, et al, Civil Action No. 92-C-7330 (ND Ill).

5. Hays DM, Landsverk J, Sallan S, et al: Educational, occupational, and insurance status of childhood cancer survivors in their fourth and fifth decades of life. J Clin Oncol 10(9):1397-1406, 1992.

6. Mellette SJ, Franco PC: Psychosocial barriers to employment of the cancer survivor. J Psychosocial Oncol 5(4): 97-115, 1987.

7. West J: Federal Implementation of the Americans with Disabilities Act, 1991-1994, p 2. New York, Millbank Memorial Fund.

8. Brown HG, Tai-Seale M: Vocational rehabilitation of cancer patients. Semin Oncol Nurs 8(3):202-211, 1992.