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Jewish World Review March 6, 2001 / 11 Adar, 5761

Bruce Hilton

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Consumer Reports

Hospital disciminates against employee for being sick -- Wouldn't you expect that a hospital would know better than to discriminate against an employee because she had cancer?

Patricia Garrett, a registered nurse, thought so.

After all, this isn't the 18th century any more. We all know that we can't catch cancer from a co-worker. We know that many kinds of cancer are curable. We know that many others are removable, with the likelihood of saving the patient's life.

We even use the word "cancer" right out loud in hospitals - an action that would have been a violation of standard medical school teaching as recently as 30 years ago.

It's bad enough that a hospital demoted Ms. Garrett, who had been working there for 17 years, simply because she had contracted breast cancer. What's even worse is that the U.S. Supreme Court says a state institution can do the same thing to any of the 4.5 million state employees who try to take a discrimination case to federal court.

Here's what happened, how it affected Patricia Barrett and how it will affect other state employees.

In 1994 Barrett was found to have early breast cancer. Given a choice among treatments of varying severity, she chose the least radical treatment - the one recommended by many of today's cancer specialists: removal of the cancerous lump, followed by radiation treatments and cancer-killing drugs.

Because of the heavy physical impact of the treatment, she took four months off from work at the University of Alabama Hospital. She went back to work when her doctors cleared her. But only a week later she found herself demoted to a job requiring less skill and paying less money. These facts apparently were not in dispute when Garrett went to court in January 1997.

The first of three laws she says the hospital violated was the Americans with Disabilities Act (ADA), which forbids discrimination against employees based on disabilities. The demotion was the discriminatory act, she said.

Second, she cited the federal Rehabilitation Act, which forbids programs that get federal money from discriminating against qualified employees who have disabilities.

Third, the Family Medical Leave Act provides for unpaid leave for employees with serious health problems.

Garrett says she should have returned to work in a position similar to the one she left.

Lawyers for the Alabama hospital didn't argue that Garrett wasn't capable of fulfilling her duties. What they said was that Congress had no right to institute anti-discriminization laws for the states - since all 50 states already had such laws on the books.

The hospital cited the 11th Amendment, which reserves the states' powers to the states, without intrusion by the federal government.

(I had a unique spot from which to judge this argument during the 1960s, when it was hot: that of a civil rights worker in Mississippi. Any attempt by the feds to increase quality of life issues for Delta cotton-choppers - who were making an average $3 a day - was met with the claim that the state's plantation owners "took care of their own" and didn't need "outside agitators" to interfere.)

Now, it was argued once again, Alabama's sovereign rights would be watered down if federal anti-discrimination statutes were to attempt the work already being done by state statutes, the lawyers said.

A panel of appellate judges reversed the first court's ruling, saying the state wasn't necessarily free from the provisions of the ADA or the Rehabilitation Act.

A federal district judge then combined Garrett's case with that of Milton Ash, another disability plaintiff. Ash, who has severe diabetes and asthma, asked his employer, the Alabama Department of Youth Services, to make some work changes that would accommodate his health conditions. This included enforcement of the state workplace no-smoking laws, since tobacco smoke was exacerbating his breathing problems. His complaints were never met, and he filed suit in 1997 as well.

Having combined the Garrett and Ash cases, the federal judge then dismissed them both.

Last week the U.S. Supreme Court ruled against Garrett's appeal, severely limiting Congress' power over the states in fighting discrimination.

State employees, we are told, may still sue in the state courts for relief when the state refuses them their health rights under law. Lotsa luck.

Bruce Hilton, director of the National Center for Bioethics, has been an ethics consultant to doctors, hospitals and patients since 1972. Comment by clicking here.


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