“The Company You Keep”: Association Discrimination under the ADA
Avoiding Discrimination against Employees Who Care for Disabled Family Members
Most employers and HR managers understand the discrimination laws in terms of protecting people based on “protected characteristics,” such as race, national origin, religion, gender, age, or disability.
A protected characteristic that is often overlooked is association with an individual with a disability. This protection is provided by the Americans With Disabilities Act (ADA) and many similar state and local laws. Employers rarely recognize this characteristic as involving a risk of discrimination liability until it is too late.
What Is Association Discrimination?
Association discrimination is discrimination based on an applicant’s or employee’s relationship or association with an individual who has a disability.
A claim for association discrimination does not require that the claimant have a disability of his or her own. The ADA also does not require that the claimant have a family relationship with the individual with a disability.
The following are some examples of situations that may constitute association discrimination under the ADA:
- A full time employee’s young daughter is diagnosed with autism, and he needs to be involved in several therapies with her. The employer has a flex-time policy, and the employee has worked part-time in the past under this policy. When the employee makes a request to return to part-time due to his daughter’s needs, his supervisor refuses the request without giving the employee any reason.
- A ten-year employee with good reviews goes home for lunch every day to help her husband, who has a debilitating illness. A new supervisor is hired, who adopts a rule that bars employees from leaving the workplace during lunch breaks.
- A full-time teacher gives birth to a son with a disability. The school unilaterally reassigns her to a new position, which has substantially less authority and job responsibility.
EEOC Guidelines on the Association Provision of the ADA
The EEOC has published Questions and Answers about the Association Provision of the ADA, which provide guidance on the purpose and application of the ADA’s prohibition of association discrimination in employment.
According to the EEOC, the purpose of the association provision is to prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.
Association Discrimination and Family Responsibilities Discrimination (FRD)
Family responsibilities discrimination is not prohibited by a new, separate law, at least not yet. Rather, it involves a variety of factual scenarios that can give rise to legal claims under a number of different existing employment laws.
The ADA is one of those laws. Where the nature of an employee or applicant’s family responsibilities can be characterized as involving association with a family member with a disability, the ADA’s association discrimination provision can be an important part of the legal arsenal used by lawyers bringing family responsibilities claims.
Three Key Points on Association Discrimination Claims
- The ADA does not require an employer to provide reasonable accommodation for a person without a disability, even if that person is a caregiver for a person with a disability.
- The ADA does require that employers treat employee who have disabled family members like other employees. Employers should make sure that these employees are not being harassed or singled out for unwarranted warnings to make them quit.
- The ADA requires employers to provide employees with dependents who have disabilities equal access to whatever health insurance coverage is offered to other employees. Employers are not required to provide additional health insurance coverage to such employees under the ADA.
Lessons For Employers From Association Discrimination Claims Brought by Caregivers of Disabled Family Members
The following judicial decisions involved adverse actions based on the employer’s assumptions about an employee’s family responsibilities involving a family member with a disability:
- Francin v. Mosby, Inc. (2008): The Court allowed an ADA association discrimination claim to proceed where an employee’s supervisor discussed the employee’s wife’s illness and its effect on his performance, then later terminated him.
Lesson –- Supervisors should focus on performance only, not on the personal circumstances that they believe may affect performance (e.g. spouse’s illness). - Lucke v. Multnomah County (2008): The court allowed an ADA association discrimination claim to proceed where an employee who cared for her disabled father was reassigned to menial tasks by her supervisor, because the supervisor reasoned that in the menial job, the employee could “take care of her family.”
Lesson -– Supervisors should focus on performance only, not on the personal circumstances that they believe may affect performance (e.g. spouse’s illness). Employers should carefully review adverse employment actions such as demotions or terminations to make sure that they are not based on conscious or unconscious bias toward people with care-giving responsibilities. - Colon v. San Juan Marriott (2008): The court recognized a prima facie case for ADA association discrimination where an employee alleged that her supervisor expressed concern as to the condition of the employee’s husband and asked whether she would need further leave to care for him.
Lesson — Even well-intentioned questions may be misinterpreted, so it is best to avoid engaging in personal conversations regarding your employee’s disability association. If the employee raises the issue, that is different, but great care should still be taken in such conversations — and legal guidance sought if there is any question about an action affecting the employee’s employment, whether proposed by the employee or by management.
The following judicial decisions involved adverse actions based on the employer’s concern that an employee with a disabled family member would increase group health insurance costs:
- Trujillo v. PacifiCorp (2008): Summary judgment for employer denied where the employer began investigating the employee after she began filing costly insurance claims for her sick son, raising questions of fact regarding the employer’s discriminatory intent.
Lesson – An employer may not use an employee or applicant’s association with a person with a disability to make any adverse employment decision, and in particular may not use that as the reason to deny health coverage available to others. - Gross v. The Gap, Inc. (2007): A former employee pleaded sufficient facts for an ADA association claim where she alleged that her employer terminated her to avoid the high cost of insuring her son, who was born with serious health complications.
Lesson – Employers must not consider the cost of health insurance for their employees –- or their employees’ dependents –- in making employment decisions.
