Cancer is a group of related diseases characterized by the out-of-control growth of abnormal cells caused by both external and internal factors, such as chemicals, radiation, immune conditions, and inherited mutations.4 In 2008, the last year for which incidence data is available, more than 12 million Americans were living with cancer.5 Some of these individuals had cancers that were not “active,” or in remission, while others still had evidence of cancer and may have been undergoing treatment.
Cancer’s effect on an individual depends on many factors, including the primary site of the cancer, stage of the disease, age and health of the individual, and type of treatment(s). The most common symptoms and side effects of cancer and/or treatment are pain, fatigue, problems related to nutrition and weight management, nausea, vomiting, hair loss, low blood counts, memory and concentration loss, depression, and respiratory problems.7
Despite significant gains in cancer survival rates, people with cancer still experience barriers to equal job opportunities. Often, employees with cancer face discrimination because of their supervisors’ and co-workers’ misperceptions about their ability to work during and after cancer treatment. Even when the prognosis is excellent, some employers expect that a person diagnosed with cancer will take long absences from work or be unable to focus on job duties.
As a result of changes made by the ADAAA, people who currently have cancer, or have cancer that is in remission, should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of normal cell growth or would be so limited if cancer currently in remission was to recur.8 Similarly, individuals with a history of cancer will be covered under the second part of the definition of disability because they will have a record of an impairment that substantially limited a major life activity in the past.9 Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of cancer or because the employer believes the individual has cancer