On 2/15/17, the Third Circuit Court of Appeals affirmed summary judgment for an employer in a case where an employee was terminated less than one month after she was diagnosed with breast cancer. The court acknowledged that “cancer can – and generally will – be a qualifying disability under the ADA.”  However, the court noted that the ADA determination of whether or not an impairment “substantially limits a major life activity” is an “individualized assessment.” Here, the court noted that the employee had not claimed that her breast cancer limited any substantial life activity, including immune system function or normal cell growth. At her deposition, the employee had testified that she was not substantially limited in any major life activity, including her work, her ability to drive, or her ability to take care of herself or her household. The case is Alston v. Park Pleasant, Inc. (3rd Cir. 2/15/17).

Employee did not argue “regarded as” or “record of” theory. The court noted in a footnote that the employee had not argued that she had been discriminated against because she had “a record” of being disabled or that she had been “regarded as” disabled. 

Lessons for employers? I caution employers about reading too much into this case.  Employees who have – or had – cancer may very well be able to point to sufficient evidence to satisfy a court or jury that they meet the threshold of proving that they have a disability, or that their employer treated them differently because they had a record of or were regarded as having a disability.

It is worth noting that the employee was having substantive performance problems before she was diagnosed with cancer, and, in fact, had been placed on a performance improvement plan prior to the diagnosis.  This fact probably influenced the court’s willingness to rule in favor of the employer.