Work and Endometriosis: Legal Issues
Guest Feature by Laurie Smith, Attorney-at-Law
Some of us who suffer from endometriosis and have a job outside the home know all too well how many days each month we have to force ourselves to get out of bed and go to work. Many times, that effort is motivated by the fear that we will lose our jobs if we use too many sick days because of endometriosis problems.
Over the past decade, a number of laws have been enacted that purport to protect the rights of workers with ongoing disabilities. The basis of many of these laws has been to provide the worker with a defense in the face of the "at-will" employment laws in effect in many states.
"At-will" employment basically means that, unless you have a contract that states otherwise, an employer can terminate an employee for any reason at any time. Obviously, those of us with endometriosis who may be absent from work more often than the average worker are certainly at risk to be the victim of the employer’s will.
Probably the most publicized and litigated law designed to protect the worker with disabilities is the Americans with Disabilities Act, known as the ADA. While the ADA was originally passed with the intent of providing access and employment opportunities to the physically and mentally handicapped, it has since been extended to cover most physical ailments as well.
The ADA defines "disability" as any one of the following three categories:
- A physical or mental impairment that substantially limits one or more of the major life activities of the individual,
- A record of such impairment, or
- Being regarded as having such an impairment.
Most women with endometriosis would easily qualify under the first definition, as it is almost inherent in the diagnosis of the disease that certain life activities are limited. The second definition is also important, because it emphasizes the need to document, preferably by regular doctor visits, the progression of the disease and its symptoms.
The Employer's Obligations Under the ADA
An employer must not discriminate against a person with a known disability who is "otherwise qualified" for a job and capable of performing its "essential functions," with or without "reasonable accommodations." "Otherwise qualified" means that the employee meets the job-related prerequisites for the position, such as level of education, experience, skills and required licenses. The "essential functions" of a job are the fundamental duties of the position such that removing an "essential function" alters the basic nature of the position.
These requirements give employers two duties under the Act:
- to not make employment decisions (hiring and firing) based upon a person’s disability, and
- to provide "reasonable accommodations" to those employees with disabilities.
As with most laws, the language written by Congress leaves room for interpretation by the courts. The "otherwise qualified" and "essential functions" requirements and the "reasonable accommodation" clause have been construed by courts across the country since the passage of the ADA in 1992.
Among those accommodations required of employers by the courts have been flexible leave policies or modified work schedules to allow disabled employees to get treatment or to recuperate as necessary from the symptoms of their disease.
Limitations of the ADA
The most limiting aspect of the ADA is that it does not apply to all employers. Due primarily to the economic considerations of small businesses, the ADA, like most federal laws designed to protect individual rights, applies only to larger employers. The ADA covers employers with 15 or more employees working for them 20 or more calendar weeks in the current or preceding calendar year. Both full-time and regular part-time employees are included in that tally.
If a company has more than one office or location, the employees in each office may be added together for purposes of the 15 employee requirement. In addition, it is not required that an employer meet the threshold at the time of the alleged violation of the Act, as long as the employer reaches the 15 count any time during the calendar year in which the alleged discrimination occurred.
The courts’ interpretations of the ADA have also been limited in terms of what employers can be required to do to assist disabled employees to keep their jobs. One of the most troubling is that the ADA allows reassignment to a lower-paying position after an employee’s leave of absence for treatment of a disability.
In addition, and probably most discouraging for endometriosis patients, is that the courts have generally sided with employers on the issue of poor attendance as a reasonable accommodation. The upside of this development is that the employer’s attendance policy must be applied equally to all employees, so there is still an opportunity to avoid discrimination solely on this basis if other employee’s attendance problems have been tolerated.
The ADA and the Hiring Process
In addition to termination of employment, the ADA may also apply to discrimination in hiring. For example, if during the course of your employment interview, a prospective employer asks about your health and you reveal your history with endometriosis, including the fact that in the past or in the future you may require special accommodations because of the disease, the employer’s failure to hire you may be discrimination under the ADA if the person hired instead of you is no better qualified for the position than you are, and does not have a disability as defined by the ADA.
In addition to the ADA, several other laws have been created to protect the rights of the disabled worker. Among the federal laws in this category as the Family Medical and Leave Act and Title VII discrimination laws. These will be discussed in a later article.
These facts may help you decide whether or not to seek legal counsel concerning discrimination as a result of your status as a woman with endometriosis. The attorney you select to advise you should be familiar with employment law and especially familiar with the ADA. Free or low-cost consultations may be available, so don’t let a lack of financial resources keep you from making sure your rights are protected. For a list of attorneys who specialize in employment law and/or offer free or discount consultations, contact your local or state bar association. Most of them maintain free referral services for the public and can be found in your local phone book.
About the Author
Laurie Smith is an attorney in Birmingham, AL. She has practiced in numerous areas of civil law, including employment, workers’ compensation and Title VII discrimination actions.
Laurie had endo symptoms since the 1980’s. She was officially diagnosed during her third exploratory procedure. After her symptoms recurred following 6 months of Lupron, she sought the help of Dr. Albee in 1996. She had surgery in March and has noticed significant improvement in her endo symptoms since that time.
No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.