Cancer and Medical Condition Discrimination Claims in California

Cancer doesn’t have to be active, or even limiting, for California law to protect an employee who has had it. Under Government Code section 12926(i), “medical condition” is its own protected category under FEHA. It covers health impairments tied to a cancer diagnosis or “a record or history of cancer,” and it covers genetic characteristics that carry an increased risk of disease. Employers still have defenses, and most depend on what the decision-makers knew and when.

How does FEHA define a medical condition?

Two things. Section 12926(i) says “Medical condition” means “Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer,” or “Genetic characteristics.” Medical condition then appears in the list of protected traits in Government Code section 12940(a), alongside physical and mental disability, as a basis on which an employer can’t refuse to hire, discharge, or discriminate in the terms of employment.

The genetic characteristics prong is narrower than it sounds. It reaches a gene or inherited characteristic “that is known to be a cause of a disease or disorder in a person or that person’s offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder,” according to section 12926(i)(2). In plain terms, it protects people who carry a risk but aren’t sick.

How is it different from a disability claim?

A disability claim usually depends on whether a condition limits a major life activity. The cancer prong of medical condition doesn’t ask that question. It protects a health impairment tied to a diagnosis, record, or history of cancer, so an employee who finished treatment years ago and works without restriction still falls within it.

The Civil Rights Council’s regulations treat the two together. California Code of Regulations, title 2, section 11065(d) says “Disability” shall be broadly construed and lists “Medical condition” among its definitions, describing it as “any cancer-related physical or mental health impairment from a diagnosis, record or history of cancer.” The same regulation also says “An impairment that is episodic or in remission is a disability if it would limit a major life activity when active.”

The practical result is that an employer should assume an employee with a cancer history is protected, whether the claim is pleaded as medical condition, disability, or both. Arguing that the employee wasn’t disabled rarely ends the case.

What does the employer owe an employee with cancer?

A good-faith conversation, and reasonable accommodation where it’s needed. Section 12940(n) makes it unlawful to “fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”

Treatment schedules drive most of these requests. The regulation’s list of possible accommodations includes “Providing a part-time or modified work schedule” and “Providing a paid or unpaid leave for treatment and recovery.” An employer that documents each request, its response, and the alternatives it considered is in a much better position than one that handled everything by hallway conversation.

There’s a limit. Section 12940(a)(2) says the law doesn’t prohibit an employer from refusing to hire or discharging an employee “who, because of the employee’s medical condition, is unable to perform the employee’s essential duties even with reasonable accommodations.” The defense works only after a real interactive process, and it’s strongest when a written job description listing those duties existed before the employee got sick.

What about genetic characteristics and family history?

Employers should stay away from both. Section 12940(o) makes it unlawful “to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.” Separately, FEHA treats genetic information as a protected trait, and section 12926(g)(1) defines it to include “The manifestation of a disease or disorder in family members of the individual.”

A manager who asks whether cancer runs in an employee’s family, or a wellness program that collects family medical history without care, creates evidence the company doesn’t need. The safer practice is to keep health questions limited to what an accommodation request actually requires.

What defenses hold up in these cases?

The usual ones, applied carefully. A legitimate, documented reason for the decision, consistent with how the company treated other employees, is still the core defense. Timing matters a great deal: performance problems documented before the employee disclosed a diagnosis carry far more weight than ones that appear afterward.

Knowledge matters too. If the person who made the decision didn’t know about the diagnosis or history, a discrimination claim is much harder to prove. Comments matter most of all. A remark about chemotherapy appointments, a question about whether the employee is “up to” the job, or a complaint about insurance costs can turn a defensible termination into a trial.

How do the rules fit together?

What should the company do when a cancer-related claim arrives?

1. Preserve the personnel file, attendance and leave records, accommodation requests and responses, emails and texts among the managers involved, and the job description and policies in effect at the time.
2. Calendar the response deadline on the CRD complaint, EEOC charge, or summons, and check for an arbitration agreement and an EPLI policy with notice requirements.
3. Identify each decision-maker and what each knew about the diagnosis and when, and stop any further action against the employee that could look like retaliation.
4. Pull the documents the claim will turn on, above all the interactive process record and any performance documentation that predates the disclosure.
5. Talk to a lawyer before responding to the employee or their lawyer, or offering anything to settle.

The firm’s page on disability and medical condition claim defense describes the firm’s approach to these cases.

Medical condition questions from California employers

Is an employee whose cancer is in remission still protected?

Yes. Section 12926(i)(1) covers health impairments related to “a record or history of cancer,” not only an active diagnosis. The regulations also treat an impairment in remission as a disability if it would limit a major life activity when active. An employer should make decisions about an employee with a cancer history on the same documented grounds it would use for anyone else.

Can we ask for a doctor’s note when an employee returns from treatment?

Within limits. Section 12940(f)(2) allows medical inquiries of employees “that it can show to be job related and consistent with business necessity.” A request tied to a specific accommodation or a return-to-work question is usually fine. A request for the diagnosis itself, or for details unrelated to the job, invites a claim. Keep any medical information separate from the personnel file.

Does FEHA apply to a small business?

For most purposes, FEHA applies to an employer “regularly employing five or more persons,” under section 12926(d). The harassment provisions reach employers with one or more employees. A company near the five-employee line should count carefully before assuming it’s outside the statute.

Can a manager be sued personally for cancer-related comments?

For harassment, yes. FEHA makes an employee personally liable for harassment the employee commits, and medical condition is one of the protected traits harassment can be based on. For discrimination in hiring, firing, or pay, the claim generally runs against the employer. Training managers on what not to say about an employee’s illness is cheaper than defending either claim.

If an employee says you treated them differently after a cancer diagnosis

If your company has received a CRD complaint or lawsuit claiming cancer or medical condition discrimination, the interactive process record and the timing of the decision usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving medical condition and disability discrimination. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The statutes are Government Code section 12926 and Government Code section 12940. The regulation is California Code of Regulations, title 2, section 11065.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.