Precept Standard: New Law Prohibiting Discrimination Based on Unemployment Status; EEOC Regulations on Reasonable Factors Other Than Age; New Guidance on Employing Disabled Veterans; Workplace Health & Safety Tip of the Month

April 2012

Law Prohibiting Discrimination Based on Unemployment Status Signed by DC Mayor: Employers Beware – Similar Laws Likely to Follow

On March 19, 2012, the Mayor of the District of Columbia signed the Unemployed Anti-Discrimination Act of 2012 (the "Act"), which prohibits employers and employment agencies from discriminating against job applicants based on their unemployment status. The Act is set to become the nation's first law to ban the consideration of an applicant's unemployment status in adverse hiring decisions. The Act will take effect following the statutorily mandated 30-day period of U.S. Congressional review, and publication in the District of Columbia Register.

Although the Act does not allow employees and applicants a private right of action, it is nevertheless significant in that it provides unemployed applicants and employee whistleblowers unprecedented protection from discrimination based on employment status. The only other similar law in effect is in New Jersey, but that law pertains to job advertisements alone, banning employers from advertising that the unemployed need not apply. Oregon's legislature passed a bill similar to New Jersey's law, but that bill has not yet been signed by Oregon's governor.

As unemployment discrimination legislation is gaining interest among legislators across the nation, we recommend that employers within and outside DC pay attention to the broad protections afforded under the Act, with the understanding that similar legislation may soon be enacted in your state. To assist employers in understanding the Act, this Alert discusses the scope of the Act's coverage, as well as the unlawful practices, enforcement mechanisms, and remedial schemes set forth therein.

Coverage

The coverage of the Act is expansive. "Employer" is defined as any person who employs or seeks to employ for compensation one or more individuals for a position in DC (but not including the person's parent, spouse, child, or domestic servant engaged in work in and about the employer's household), as well as any person acting in the interest of the employer, directly or indirectly.

The Act also covers "employment agencies" – defined as any person regularly undertaking or attempting, with or without compensation, to procure employees for an employer (or to procure opportunities for employees to work for an employer), as well as an agent of such person.

Under the Act an "employee" is any individual employed by an employer, and a "potential employee" includes any individual who has applied to an employer for a vacant position to obtain employment.

Finally, the Act defines "status as unemployed" to mean any individual who, at the time of applying for employment, or, who at the time an act alleged to violate the Act occurs, does not have a job, is available for work, and is seeking employment.

Discrimination Defined

Under the Act, it is an unlawful practice for an employer or employment agency:

  • To fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of his unemployed status.
  • To publish in print, on the Internet, or in any other medium, an advertisement or announcement for any vacancy in a job for employment that includes:
    • Any provision stating or indicating that an individual's unemployed status disqualifies the individual for the job.
    • Any provision stating or indicating that an employer or employment agency will not consider or hire an individual for employment based on that individual's unemployed status.

Retaliation/Whistleblower Protections Defined

Under the Act, which contains broad retaliation and whistleblower protections found in other anti-discrimination laws, employers and employment agencies are prohibited from interfering with, restraining, or denying the exercise of any right specified therein. Further, the Act prohibits employers and employment agencies from failing or refusing to hire, or discharging, any employee or potential employee for:

  • Opposing any practice made unlawful by the Act.
  • Filing any charge, or instituting (or causing to be instituted) any proceeding relating to any right provided under the Act.
  • Giving (or about to give) any information in connection with any inquiry or proceeding relating to any right provided under the Act.
  • Testifying (or about to testify) in any inquiry or proceeding relating to any right provided under the Act.

Exemptions

The Act contains three exemptions that allow employers and employment agencies to continue to engage in certain activities when filling job vacancies. Accordingly:

  • Job advertisements may contain any other lawful job qualification including:
    • The holding of a current and valid professional or occupational license.
    • A certificate, registration, permit, or other credentials.
    • A minimum level of education, training, or professional, occupational, or field experience.
  • Employers and employment agencies may continue to examine the reasons underlying an individual's unemployed status in assessing an individual's ability to perform a job or in otherwise making employment decisions about that individual.
  • Employers may limit the applicant pool to their own current employees and any advertisement can specify that only applicants who are currently employed by the employer will be considered for employment.

Enforcement and Remedy

The District of Columbia Office of Human Rights ("DCOHR") will be responsible for handling all complaints alleging violations of the Act. Once a complaint has been filed, the DCOHR will have one month to investigate and determine whether an employer or employment agency violated the Act and assess a penalty.

Under the Act, DCOHR can assess civil penalties of $1,000 per claimant for a first violation, $5,000 per claimant for a second violation, and $10,000 per claimant for each subsequent violation (but not to exceed a total of $20,000 per violation). DCOHR will distribute the funds among any employee or potential employee who filed a claim under the Act.

Takeaway

Along with New Jersey's law, the Act may be the harbinger of future legislation at the federal and state levels. In fact, there are currently four bills pending before the U.S. Congress that would prohibit employers from making most hiring decisions based on an applicant's unemployed status (which two of the federal bills define to include gaps in employment history). Unlike the Act, however, these bills would allow applicants and employees to bring a private right of action and to recover generous remedies from employers and employment agencies found to be violating the law. Furthermore, bills containing some form of ban on employment discrimination have been proposed in approximately half of state legislatures.

It is worth noting that this issue is also on the radar screen of the Equal Employment Opportunity Commission (EEOC). Last year the EEOC conducted a public hearing on the topic of unemployment discrimination, entertaining the prospect that the alleged practice disparately impacts minority groups protected under existent federal discrimination law and the agency is purportedly investigating a number of charges involving allegations of unemployment discrimination.

Overall, the hiring process has received a tremendous increase in legislative and judicial attention in recent years both at the federal and state levels. This scrutiny includes a headwind of laws and proposed laws and potential new guidance from the EEOC that would ban or limit inquiries into an applicant's credit and criminal background history and use of social media.

Best Practices

  • To avoid potential scrutiny, employers should:
    • Delete all reference to current employment status in job advertisements and/or their instructions to staffing agencies.
    • Carefully review hiring procedures, including those of their regularly used outside employment agencies/recruiters, to avoid the appearance of "screening" based on unemployment status or otherwise eliminating applicants from consideration based solely on unemployed status.
  • Those interviewing prospective candidates should be reminded that they should not comment orally, or in a post-interview written review as to a candidate's unemployment status as a rationale for any recommendations.
  • Employers should be cognizant of the Act and New Jersey law and the expanding patchwork of legislation and proposed legislation intended to eliminate perceived barriers to hire, but may continue to:
    • Consider an unemployed candidate's work history, including reason for unemployment – so long as information is relevant to job performance.
    • Hire candidates with the most relevant and/or most recent appropriate work experience.

If you have any questions or concerns regarding the Act, please contact your labor attorney.

Authors of this alert: Katharine H. Parker & Daniel L. Saperstein

Note: The information in this Alert was provided to Precept by Proskauer Rose LLP. Proskauer is an international full-service law firm with over 60 employee benefits attorneys located in offices across the United States. The information in this article is not intended as legal advice nor is it intended to provide a comprehensive review of the legal matters discussed. For more information about Proskauer, please contact Peter Marathas at (617) 526-9704 or pmarathas@proskauer.com. ©2012 Proskauer Rose LLP. All rights reserved. Used with permission.


EEOC Final Regulations on Reasonable Factors Other Than Age May Have Broad Impact on Employer Policies/Practices

The U.S. Equal Employment Opportunity Commission published new regulations [on March 30, 2012,] setting forth the agency's interpretation and position on the scope of the "reasonable factors other than age" ("RFOA") defense to disparate impact claims under the Age Discrimination in Employment Act (the federal law prohibiting discrimination against employees age 40 and over). The regulations take effect 30 days after publication. While the EEOC insists that the regulations are "not intended to impose unwarranted burdens on employers," the reality is that they will make many employers' decision-making processes far more complex, and will make it far more difficult for employers to successfully assert the RFOA defense than ever before. The regulations are also likely to lead to increased disparate impact litigation, as plaintiffs exploit the more onerous defense standards. Meanwhile, how courts will interpret these regulations, and what deference they will give them, remains to be seen, meaning, at least in the short term, a great deal of uncertainty.

Background

The EEOC has explained that its goal in drafting the regulations was to bring EEOC regulations in line with the United States Supreme Court's decisions in Smith v. City of Jackson and Meacham v. Knolls Atomic Power Lab. In those cases, the Court held, among other things, that while the ADEA authorizes recovery for disparate impact claims, the RFOA test, rather than the more stringent business necessity test, is the appropriate means of determining the lawfulness of a practice that disproportionately affects older individuals. Unlike the business necessity test, which asks whether there is any other way for the employer to achieve its goals that would not result in a disparate impact on a protected class, the RFOA defense requires only that the employer's actions be "reasonable." While the individual challenging the allegedly unlawful practice is responsible for isolating and identifying the specific employment practice that allegedly causes a disparate impact, as the Supreme Court held in Meacham,the employer defendingan ADEA disparate-impact claim bearsboth the burden of production and theburden of persuasion on the RFOA defense.

The New Regulations

Per the new regulations, whether a particular employment practice is based on a reasonable factor other than age turns on the facts and circumstances of each particular situation. A reasonable factor other than age, says the EEOC, is "a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances."

To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and was administered in a way that reasonably achieves that purpose in light of the facts and circumstances that were known, or should have been known, to the employer.

The new regulations contain a non-exhaustive list of "considerations" that will be examined to determine whether a practice is based on a reasonable factor other than age. What other factors courts will consider remains an open question. The EEOC has made clear that no specific consideration or combination of considerations need be present to establish the RFOA defense, nor does the presence of one of these considerations automatically establish the defense.

The enumerated "considerations" are:

  • The extent to which the factor is related to the employer's stated business purpose.
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination.
  • The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes.
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers.
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of people adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

These new considerations will be examined whenever an employment decision that has an adverse impact on older employees is challenged. Practically speaking, this means that employers are going to be held to a higher standard, and may be under closer scrutiny, than ever before. It will be crucial that employers ensure not only that the factors used in making employment decisions are related to their business goals, but that the processes they use in implementing policies or practices that may have a disparate impact on those 40 and over can withstand scrutiny.

Employer Takeaways

In light of these new regulations, employers should anticipate that employment decisions that are alleged to have an adverse impact on older employees will be challenged. Hence, in order to prepare for and rebut the inevitable litigation that is sure to follow, prudence dictates that employers consider the following steps now:

  • Examine and document goals – Before taking action that might have an adverse impact on employees age 40 and over, employers should thoroughly examine (and document) their needs and goals, and confirm that the proposed course of action, and the factors to be used in decision-making, will produce the desired results.
  • Offer training opportunities to employees regardless of age – If an employer is going to make decisions based on comparative skill, it is important that all employees have had equal access to training on those skills.
  • Document performance issues – If an employer is going to make employment decisions based on performance, it will be crucial to have accurate performance records to justify these decisions. Managers and supervisors evaluating performance should be trained on how to conduct these evaluations fairly.
  • Review employment decisions for hallmarks of age bias – When younger employees are favored over those age 40 and over, particularly when decisions are made by local managers or supervisors, it is important to scrutinize the reasoning behind the decisions for hidden age bias. Beware comments that the younger employees are more flexible, adaptable, or work better with others. The more objective the criteria, the better.
  • Conduct adverse impact analyses – Employers, particularly sophisticated employers, are not going to be able simply to "stick their heads in the sand." The EEOC expects employers to determine whether their policies will have an adverse impact on older employers before implementing such policies. While the regulations do not require employers to use the least discriminatory alternative, if implementation will have an adverse impact, employers are expected to consider whether other courses of action might produce the same results with less impact.
  • Train decision-makers on the ADEA – Employers are expected to train their executives, managers, and supervisors on ADEA issues, and how to craft and implement policies fairly.

As noted, we expect to see an increase in disparate impact litigation arising from the new regulations and, because the regulations are untested, there remains a great deal of uncertainty as to how to proceed with actions that may have an adverse impact on older employees. This uncertainty will likely be compounded by the EEOC's issuance of Q&As regarding the new regulations, which in various places appear at odds with the regulatory language and the agency's discussion in the preamble to the regulations.

Seeking the advice of counsel at the early stages of decision-making can be immensely helpful in heading off issues before they become problems. If you have any questions or concerns, do not hesitate to contact your labor attorney.

Note: The information in this Alert was provided to Precept by Proskauer Rose LLP. Proskauer is an international full-service law firm with over 60 employee benefits attorneys located in offices across the United States. The information in this article is not intended as legal advice nor is it intended to provide a comprehensive review of the legal matters discussed. For more information about Proskauer, please contact Peter Marathas at (617) 526-9704 or pmarathas@proskauer.com. ©2012 Proskauer Rose LLP. All rights reserved. Used with permission.


EEOC Issues New Guidance Concerning Employing Disabled Veterans

In light of the many veterans returning from service and seeking work in the private sector, the U.S. Equal Employment Opportunity Commission (EEOC) issued two new guidance documents focusing on employment rights of disabled veterans. The first guidance document is geared toward employers and entitled, "Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers." See http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm. The second guidance document is geared toward veterans and entitled, "Understanding Your Employment Rights Under the Americans with Disabilities Act (ADA): A Guide for Wounded Veterans." See http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm.

Both documents discuss the impact of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) on Title I of the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) with respect to disabled veterans. They evidence greater coordination between the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) and EEOC support for the OFCCP's proposed new rules for federal contractors concerning Section 503 of the Rehabilitation Act. (For more information about these rules, see Proskauer Client Alert "OFCCP Notice of Proposed Rulemaking" found at: http://www.proskauer.com/publications/client-alert/ofccp-notice-of-proposed-rulemaking/.) In particular, the new EEOC guidance indicates that the proposed new rules concerning applicant tracking and pre-offer invitations to self-identify would not, in the EEOC's view, violate the ADA's prohibition of certain disability-related inquiries. However, substantial questions have been raised by the business community concerning the legality of some aspects of the OFCCP's proposed Section 503 rules, including as to pre-offer disability inquiries, and the EEOC guidance may carry little weight in the event of a court challenge. Nonetheless, employers should carefully review the guidance documents to understand what the EEOC currently views as best practices with respect to the recruitment and employment of disabled veterans.

This client alert summarizes the key aspects of both the Employer and the Veteran Guides.

I. Employer Guide at a Glance

  • Provides an overview of ADA and USERRA protections, and the impact of the ADAAA on each statute.
  • Explains employer's pre-offer right to inquire about an applicant's "disabled veteran" status for affirmative action purposes. Permissible inquiries include: (i) an applicant's ability to perform specific job functions, including whether applicants can perform job functions with or without reasonable accommodation; (ii) an applicant's non-medical qualifications and skills, such as the applicant's education, work history, and required certifications and licenses; and (iii) asking applicants to describe or demonstrate how they would perform job tasks.
  • Explains that, at the pre-offer stage, employers may not: (i) ask disability-related questions, or (ii) require medical examinations "even if [the employer] intends to look at the answers or results only at the post-offer stage."
    • "Disability-Related Question" means a question that is likely to elicit information about a disability. Examples include asking: (i) whether an applicant has or has ever had a disability; (ii) what prescription medications applicants are taking; and (iii) the results of any genetic tests they have had.
      For more information, see "Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)," found at: http://www.eeoc.gov/policy/docs/qanda-inquiries.html.
    • Employers may, however, ask questions with several possible answers "and only some of those answers would contain disability-related information." Permissible questions are similar to those an employer may ask when inquiring about an applicant's disabled veteran status for affirmative action purposes. Employers may, for example:
      • Ask "whether applicants can perform any or all job functions, including whether applicants can perform job functions 'with or without reasonable accommodation.'"
      • Ask "applicants to describe how they would perform all job functions, as long as all applicants in the job category are asked to do this."
      • NOTE: Employers may not refuse to hire an individual based on disability-related information disclosed in response to such questions unless the reason is "job-related and consistent with business necessity."
        For more information, see "ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examination," found at: http://www.eeoc.gov/policy/docs/preemp.html.
  • Supports the OFCCP's assertion that pre-offer inquiries under the proposed amendments to Section 503 of the Rehabilitation Act comply with ADA requirements.
  • Recommends steps employers should take when asking "disabled veterans" to self-identify for affirmative action purposes. Recommendations include providing clear and conspicuous indications on any written questionnaire, or clear statements that:
    • "[T]he information requested is intended for use in connection with [the employer's] affirmative action obligations or its voluntary affirmative action efforts."
    • "[T]he specific information is being requested on a voluntary basis, it will be kept confidential in accordance with the ADA, refusal to provide it will not subject the applicant to any adverse treatment, and it will be used only in accordance with the ADA."
  • Provides a brief description of the special hiring authorities that federal agencies may be able to use to hire veterans with disabilities, including (i) Veterans' Recruitment Appointment (VRA); (ii) Veterans Employment Opportunity Act (VEOA); and (iii) Schedule A Appointment Authority.
  • Discusses hiring preferences that anti-discrimination statutes afford veterans with service-connected disabilities. For example, like the OFCCP, the EEOC stated that the ADA "does not prevent affirmative action on behalf of individuals with disabilities." Private employers, therefore, may "hire an individual with a disability who is qualified (including a veteran with a disability) over a qualified applicant without a disability." Further, employers should be aware that "the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) requires that businesses with federal contracts of $25,000 or more take affirmative action to employ and advance qualified disabled veterans" (emphasis added). In addition, under Title 5 of the United States Code, the Veterans' Preference Act (VPA) provides that federal employers must afford "veterans with and without disabilities . . . preference over others in hiring from competitive lists of eligibles." Other preferences veterans receive under the VPA include consideration "for special noncompetitive appointments for which they are eligible," and "advantages over nonveterans in reductions in force (RIF)."
    For more information, see, "U.S. Office of Personnel Management, VetGuide," found at: http://www.opm.gov/staffingportal/vetguide.asp.
  • Discusses how to determine if a veteran with a disability requires an accommodation. Employee requests, typically, alert employers to the necessity of a reasonable accommodation. Employers should note that such requests may be oral or in writing and do not require specific mention of the ADA or terms like "reasonable accommodation."
  • Discusses when an employer may ask a veteran with a disability if a reasonable accommodation is required:
    • During the application process: "[A]n employer may explain what the hiring process involves (e.g., an interview, timed written test, or job demonstration) and ask all applicants whether they will need a reasonable accommodation to participate in any part of the process."
    • Obvious Disability: "[I]f an employer reasonably believes that a veteran with an obvious service-connected disability (e.g., a veteran who is blind or missing a limb) who is applying for a particular job will need a reasonable accommodation to do that job, the employer may ask whether an accommodation is needed and, if so, what type."
    • Course of Employment: "Once a veteran with a disability has started working, an employer may ask whether an accommodation is needed when it reasonably appears that the person is experiencing workplace problems because of a medical condition."
  • Provides a brief overview of the differences between USERRA and ADA. For example, while both the ADA and USERRA prohibit employers from discriminating against veterans based on a disability, USERRA goes further than the ADA, protecting both disabled and non-disabled members of the uniformed services. In addition, USERRA requires "employers to . . . [make] reasonable efforts to assist a veteran who is returning to employment to become qualified for a job whether or not the veteran has a service-connected disability"; reasonable efforts may include "training or retraining for [a] position."

II. Wounded Veterans Guide at a Glance

  • Provides an overview of ADA and USERRA protections, and the impact of the ADAAA on each statute.
  • Describes which employers are covered by anti-discrimination statutes.
  • Explains the rights of applicants for employment with disabilities:
    • Can an employer ask an applicant if he or she is disabled?
    • What if an applicant has an obvious disability that is likely to require a reasonable accommodation, e.g., blindness or an amputated limb?
  • Discusses whether employees or applicants for employment must disclose known disabilities.
  • Explains when an employer may inquire about an applicant's status as a "disabled veteran," e.g., for affirmative action purposes.
  • Describes the types of reasonable accommodations an applicant for employment and employee may request.
  • Provides guidance regarding how an applicant for employment or employee should request a reasonable accommodation.
  • Explains what an applicant for employment or employee should do if an employer violates ADA or USERRA protections.

III. What This Means for Employers

The guidance documents offer a strong statement by the EEOC that the commission intends to aggressively enforce anti-discrimination laws that apply to veterans with service-connected disabilities. The EEOC guidance documents are by no means exhaustive, and employers should be aware that additional rules and requirements govern employer hiring and employment practices. Employers should be sure to fully understand and comply with veteran and disability anti-discrimination laws.

If you have any questions regarding the new EEOC guidance, compliance with ADA or USERRA, or other laws related to veterans with service-connected disabilities, please contact your labor attorney.

Note: The information in this Alert was provided to Precept by Proskauer Rose LLP. Proskauer is an international full-service law firm with over 60 employee benefits attorneys located in offices across the United States. The information in this article is not intended as legal advice nor is it intended to provide a comprehensive review of the legal matters discussed. For more information about Proskauer, please contact Peter Marathas at (617) 526-9704 or pmarathas@proskauer.com. ©2012 Proskauer Rose LLP. All rights reserved. Used with permission.


April is National Alcohol Awareness Month

Alcohol Awareness Month is an opportunity to raise awareness of alcohol abuse and encourage people to make healthy, safe choices. Below is an excerpt from a publication by the National Institute on Alcohol Abuse and Alcoholism (NIAAA), Beyond Hangovers: Understanding Alcohol’s Impact on Your Health.

To read the entire publication or to print or order copies for your employees, click here.

For more information and additional resources and publications, visit the NIAAA website at www.niaaa.nih.gov.

Cancer Risks

Know the Risks:

Genetics, environment, and lifestyle habits can all heighten your risk of getting cancer. We can’t do anything to change our genes, and we often can’t do much to change our environment. But lifestyle habits are a different story.

Drinking too much alcohol is one lifestyle habit that can increase your risk of developing certain cancers. This does not mean that anyone who drinks too much will develop cancer. But numerous studies do show the more you drink, the more you increase your chances of developing certain types of cancer.

For example, a group of Italy-based scientists reviewed more than 200 studies examining alcohol’s impact on cancer risk. The collective results of these studies clearly demonstrate that the more you drink, the higher your risk for developing a variety of cancers. The National Cancer Institute identifies alcohol as a risk factor for the following types of cancer:

  • Mouth
  • Esophagus
  • Pharynx
  • Larynx
  • Liver
  • Breast

At least 7 out of 10 people with mouth cancer drink heavily. Drinking five or more drinks per day can also increase your risk of developing other types of cancers, including colon or rectal cancer. In fact, summary estimates from the recent World Cancer Research Fund report indicate that women who drink five standard alcohol drinks each day have about 1.2 times the risk of developing colon or rectal cancer than women who do not drink at all.

People who drink are also more likely to smoke, and the combination increases the risk significantly. Smoking alone is a known risk factor for some cancers. But smoking and drinking together intensifies the cancer-causing properties of each substance. The overall effect poses an even greater risk.

The risk of throat and mouth cancers is especially high because alcohol and tobacco both come in direct contact with those areas. Overall, people who drink and smoke are 15 times more likely to develop cancers of the mouth and throat than nondrinkers and nonsmokers. In addition, recent studies estimate that alcohol and tobacco together are responsible for:

  • 80 percent of throat and mouth cancer in men
  • 65 percent of throat and mouth cancer in women
  • 80 percent of esophageal squamous cell carcinoma, a type of esophagus cancer
  • 25 to 30 percent of all liver cancers

Women and Cancer:

One recent, groundbreaking study followed the drinking habits of 1.2 million middle-aged women over seven years. The study found that alcohol increases women’s chances of developing cancers of the breast, mouth, throat, rectum, liver, and esophagus. The researchers link alcohol to about 13 percent of these cancer cases.

In addition, the study concluded that cancer risk increases no matter how little or what kind of alcohol a woman drinks. Even one drink a day can raise risk, and it continues to rise with each additional drink. While men did not participate in this study, the researchers believe this risk is likely similar for men.

This study also attributes about 11 percent of all breast cancer cases to alcohol. That means that of the 250,000 breast cancer cases diagnosed in the United States in 2008, about 27,000 may stem from alcohol.

Know the Reasons:

Scientists are still trying to figure out exactly how and why alcohol can promote cancer. There are a variety of possible explanations.

One explanation is that alcohol itself is not the primary trigger for cancer. We know that metabolizing, or breaking down, alcohol results in harmful toxins in the body. One of these toxins is called acetylaldehyde. Acetylaldehyde damages the genetic material in cells – and renders the cells incapable of repairing the damage. It also causes cells to grow too quickly, which makes conditions ripe for genetic changes and mistakes. Cancer can develop more easily in cells with damaged genetic material.

In addition, recent animal studies have shown that as cells try to break down alcohol, they cause the body to produce additional amounts of a protein called vascularendothelial growth factor (VEGF). VEGF promotes the growth of blood vessels and organ tissue. But, the flip side of having too much VEGF is that it allows blood vessels to grow in cancer cells that would die on their own. This allows the cancer cells to develop into tumors.

We also know that alcohol can damage the liver, causing cirrhosis. Cirrhosis results when too much scar tissue builds up within the liver and leaves it unable to perform its vital functions. One of the many complications that can result from cirrhosis is liver cancer.

Hormones may be the link between alcohol and breast cancer. Alcohol can increase the amounts of some hormones in the body, including estrogen. An excess of estrogen may lead to breast cancer.

Finally, genetics may play a role in preventing some heavy drinkers from developing cancer. A European research team examined 9,000 people with similar lifestyle habits to determine why some of them developed mouth and throat cancers, and some did not. Of the participants who were heavy drinkers, those who did not develop cancers had a particular genetic alteration that enabled them to break down alcohol about 100 times faster than in those without it. The study suggested that this gene is the reason why some people are less likely to develop cancer in response to heavy drinking.

Know There’s a Bright Side

Fortunately, studies show that you can reduce your risk for cancer by drinking less. A recent Canadian report analyzed studies from 1966 through 2006 and concluded that risk reduction is possible, specifically for head and neck cancers. The study found that as people abstained from drinking, their risk for developing cancer plunged. After 20 years of abstinence, former drinkers had the same risk for head and neck cancers as people who never drank.


THE CONTENTS OF THIS COMMUNICATION DO NOT CONSTITUTE LEGAL OR TAX ADVICE. We have provided this communication for general informational purposes only, and it is not intended to dispense legal or tax advice. Employers should consult their own legal and tax counsel to determine if there are legal issues that need to be addressed as part of the ongoing administration of their employee benefit plans and human resources policies.