Fighting words: See breast
cancer as a disability

January 23, 2004

In August 2002, Roseanne Bova lost her job at a Gucci store in Boston when she asked to be exempted from a new rule that all employees work a 40-hour week.

Bova had her reasons. She was battling breast cancer.

Bova, 49, has finished treatment. Now she is fighting the legal system over whether breast cancer is a long-term disability and protected under the Americans With Disabilities Act (ADA).

A previous manager had allowed Bova to work a flexible shift, 9 a.m. to 3 p.m. That way, the longtime employee, who had always worked 30 hours a week, could undergo chemotherapy and radiation treatments at Massachusetts General Hospital afterward.

Bova was diagnosed with breast cancer in the summer of 1998 but continued to deal with severe bouts of depression and side effects from her follow-up drug treatment four years later. But she always logged her 30 hours a week.

When her new manager denied any special exceptions to the new 40-hour rule, Bova supplied a ''letter of medical necessity'' from a nurse-practitioner. The letter explained that ''it may not be in Ms. Bova's best interests to increase her work hours'' and that the 16-year employee was taking medication to help control ''transient periods of anxiety and increased fatigue with stress.''

The letter didn't get an official response. Bova stopped working a week after she had an encounter with her manager and left in tears.

''I begged them, 'Can you understand what I'm going through?' '' Bova told the Boston Globe. ''And their response was, 'If you don't like it here, there are other people who want your job.' ''

Bova's cancer treatment ended last August, five years after she was first diagnosed. It is typical for breast cancer patients to be on a drug regimen for five years and for doctors to not consider a woman cancer free for five years.

In a lawsuit against Gucci filed in federal court last summer, Bova has asked for back wages, punitive damages for emotional distress and attorney's fees. She hasn't found work since leaving the Gucci store in 2002.

Gucci has not denied that Bova made the request for an accommodation based on her breast cancer diagnosis or her follow-up therapy. The company's attorney has stated, ''Gucci is confident it will ultimately prevail in court.'' The company said it stands by its record with respect to employees with breast cancer.

An experienced employment lawyer in Boston, Herb Holtz, took on Bova's case. So far, Holtz has spent most of his efforts on whether breast cancer can be ruled a long-term disability. He said a surprising number of court decisions assume the disease ''lasts three to four months.'' His legal research shows little room under the ADA for a breast cancer patient to seek legal recourse. Judges routinely write in decisions that breast cancer doesn't trigger longer-term ADA protection.

''Breast cancer is peculiar (from other forms of cancer) in that there is a five-year active treatment window,'' said Holtz. ''Many patients keep taking toxic anti-cancer drugs for five years to make sure the woman stays free of cancer.''

In Bova's instance, she was taking Tamoxifen, which can cause side effects including nausea, vaginal bleeding, vaginal tumors, hormonal imbalance and depression. Holtz said his client suffered vaginal tumors and emotional turmoil.

Although Holtz clearly will fight on behalf of his client, he sees a big-picture issue here.

The ADA law sorts out disability by applying a test of three points, Holtz explained. A person must prove there is (1) impairment that (2) substantially limits (3) a life activity, such as work.

''The point of contention is whether ongoing breast cancer treatment 'substantially limits' the ability to work,'' he said.

Holtz has contacted breast cancer support organizations that are ''horrified'' at the legal precedent. When the ADA was introduced in the early 1990s, most activists saw it as a godsend for working women diagnosed with breast cancer. It hasn't worked out that way.

''We can either create more awareness among judges, lawyers and patients, or we can get Congress to redefine breast cancer as a disability,'' said Holtz. ''The more realistic option is educating people.''

Any added ADA protection won't create a flood of breast cancer-related cases, he said.

''This is hardly a trial lawyer's dream come true,'' he said. ''A qualified disabled plaintiff must still prove whether discrimination occurred and that she can perform the essential functions of the job without causing the employer undue hardship. This is no free pass. It just gives women in the workplace a better legal standing.''


(Bob Condor writes for the Chicago Tribune. Write to him at: the Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611.)

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