* No Need to Reveal Your Cancer
Cancer History Might Not Affect Insurance
Q I recently finished chemotherapy for cancer but took no disability. I have always received excellent evaluations and raises.
I am now looking for a less stressful job and wondering whether I need to inform prospective employers that I had cancer.
In changing companies, would I run the risk of failing to qualify for insurance because of a preexisting condition?
--B.C., Los Angeles
*
A You need not inform prospective employers that you had cancer.
The Americans with Disabilities Act prohibits employers from asking questions during job interviews that are designed to induce disclosure of disabilities, and California law specifically prohibits discrimination against applicants and employees based on their having had cancer that has been cured.
After making a job offer, employers are permitted to require physical examinations, and you may be asked at that time about your health history. This information cannot be used to deny you the job, however, unless you would be unable to perform the essential functions of the job as a result of cancer, which is unlikely.
Where health insurance is concerned, the Health Insurance Portability and Accountability Act, which became effective in 1996, greatly restricts preexisting condition limitations in group health plans. Under this law, the period for denying coverage for a preexisting condition may not exceed 12 months.
This 12-month period can be reduced if you were covered under a prior health plan, however. While the rules are a bit complicated, if you had at least 12 months of uninterrupted coverage under your current employer’s plan, you could eliminate the preexisting condition exclusion altogether. A shorter period of coverage under the previous health plan would reduce the length of the exclusion for a preexisting condition commensurately.
This assumes that you would not allow coverage under your old employer’s plan to lapse (by exercising your rights, if necessary, under the Consolidated Omnibus Budget Reconciliation Act, known as COBRA) before becoming covered under the new plan.
You will also have to obtain a coverage certificate from your current employer’s plan after you leave. If this is not provided to you automatically when you resign, you can request that the health plan provide it.
--James J. McDonald Jr.
Attorney, Fisher & Phillips LLP
Labor law instructor, UC Irvine
Should I Quit Due to Age Discrimination?
Q I believe I am the victim of age discrimination at work and would like to initiate some action to correct the problem.
I am 55 and most of the others in my group are at least 15 years younger. The manager favors younger workers because they are better at thinking “out of the box.”
So I am given clerical tasks or assignments that no one else wants. I was assigned to a team in charge of implementing new company software but was given only clerical tasks. As a result, I didn’t get a chance to become familiar with the new software, putting me at a disadvantage in getting good assignments.
Should I quit, or would that put me at a disadvantage in pursuing some action against the company?
--A.H., Los Angeles
*
A Probably. If you quit because you believe you have suffered age discrimination, you would have to make a “constructive termination” claim against your employer.
To succeed with such a claim you would have to prove that your working conditions were so intolerable that any reasonable person in your position would conclude that he or she must resign.
Under the facts presented in your letter, I am not confident that you could make that case. In addition, California cases require that you notify the employer that the conditions are intolerable and give the company an opportunity to correct the situation.
It is not possible to tell from your letter whether you have spoken with the employer in an attempt to resolve the problem informally.
A better alternative probably would be to make the age discrimination claim with either the state or federal discrimination agency while you are still employed.
In order to make a successful age discrimination claim, you must be able to prove the following:
* You are a member of the protected class (which you are because you are at least 40 years old).
* An adverse employment action was taken against you. (You appear to be contending that you have been demoted by virtue of the menial tasks you have been given.)
* Age was a factor in the employer’s decision to take the adverse action against you.
Your employer will then have an opportunity to prove that its actions were not based on a discriminatory motive.
Employers may not retaliate in any way against an individual who has filed an age discrimination claim.
Before you file an age discrimination claim in court, you must exhaust your administrative remedies, which means that you must file a claim with either the state or federal antidiscrimination agency.
The state agency is the California Department of Fair Employment and Housing and the federal agency is the Equal Employment Opportunity Commission. Their numbers are in the phone book under State of California and United States, respectively.
If you decide to quit because of your perception that you have been the victim of age discrimination, be sure that you give your employer written notice, describing the problem in detail. This is an important prerequisite to a constructive termination claim.
--Diane J. Crumpacker
Management law attorney
Fried, Bird & Crumpacker
If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92628; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.
