Association Discrimination Under the Americans with Disabilities Act

Transcription

1 Association Discrimination Under the Americans with Disabilities Act Thomas J. Riley Kristen D. DeCato Tobin, Carberry, O Malley, Riley & Selinger, P.C.

2 What is Association Discrimination? Under the ADA, an employer is prohibited from discriminating against an employee based upon their association or relationship with an individual who has a known disability.

3 Statutes and Regulations 42 U.S.C (a)- General rule. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.

4 Statutes and Regulations 42 U.S.C (b)(4) the term discriminate includes excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. See also EEOC Interpretive Guidelines 29 CFR app.

5 Covered Relationships Intended to cover family, business, social or other relationships. Not limited to familial relationships. See Dollinger,, 44 F. Supp. 2d 467 (N.D.N.Y. 1999). Casual relationships are not protected. See Larimer,, 370 F.3d 698 (7 th Cir. 2004)

6 3 Scenarios See Larimer,, 370 F.3d 698 (7 th Cir. 2004) and EEOC Guidelines, 29 CFR app Expense: Employer is concerned because the spouse of an employee is disabled and caring for the spouse will be costly to the employer s health plan. Jackson,, 96 F.Supp.. 2d 873 (S.D.Ind ); see also Abdel-Khalek Khalek,, 1999 U.S. Dist. LEXIS 2369 (S.D.N.Y. 1999) Distraction: Employer is concerned because the employee is inattentive at work due to concern over a spouse s or child s disability. Abdel- Khalek,, 1999 U.S. LEXIS 2369 (S.D.N.Y. 1999)

7 3 Scenarios Disability by association: The employee s homosexual companion is HIV positive and the employer is concerned that the employee may become infected. See Dollinger,, 44 F. Supp. 2d 467 (N.D.N.Y. 1999); Doe,, 2001 U.S. Dist. LEXIS (D.Oregon 2001) An employee s blood relative has a genetic disability and the employer is concerned the employee may also develop the disability.

8 Reasonable Accommodation Under the ADA, employers are required to give qualified individuals with a disability reasonable accommodation. 42 U.S.C (b)(5). An employee associated with a disabled person is not a qualified individual with a disability and is not entitled to accommodation. 29 CFR app.

9 Reasonable Accommodation Basically, this means that an employee is not entitled to work a modified work schedule to care for a disabled spouse or child. An employee must comply with all uniformly enforced attendance and workplace policies. Association protection applies to cases where the employer has an unfounded belief that the employee will miss work due to an associate s disability. See Overly,, 2006 U.S. App. LEXIS (6 th Cir. 2006); Tyndall,, 31 F.3d 209 (4 th Cir. 1994)

10 The Standard Must make out a prima facie case: The plaintiff was qualified for the job at the time of the adverse employment action; The plaintiff was subjected to adverse employment action; The plaintiff was known by his employer at the time to have a relative or associate with a disability; and The adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employment decision.

11 The Standard The burden then shifts to the defendant employer to proffer a legitimate, non discriminatory reason for the adverse action. The burden then shifts back to the plaintiff to show that the employer s proffered reason was pretextual. See Den Hartog,, 129 F.3d 1076 (10 th Cir. 1997)

12 The Standard Judge Posner, in Larimer,, 370 F.3d 698 (7 th Cir. 2004) points out that this standard differs from the McDonnell Douglas test. The fourth element requires the plaintiff to produce evidence that he was discriminated against because of his relative s or associate s disability. Contrast this with McDonnell Douglas which only requires a plaintiff to show that he was replaced by someone not in the protected class.

13 The Prima Facie Case Summary judgment denied where the plaintiff requested an unpaid leave of absence to care for her premature, disabled infant because the plaintiff produced evidence that the defendant was concerned about the costs of the child s medical care and that the child s illness would distract the plaintiff. Abdel-Khalek Khalek, 1999 U.S. Dist. LEXIS 2369 (S.D.N.Y. 1999).

14 The Prima Facie Case Repeated absences coupled with continued requests for time off renders an employee unqualified for the position. Tyndall,, 31 F. 3d 209 (4 th Cir. 1994) Where a plaintiff admits unsatisfactory or declining performance, even when attributable to a relative s disability, the plaintiff fails to make out a prima facie case. Tabachnik,, 2004 U.S. Dist. LEXIS 3405 (S.D.N.Y. 2004)

15 Retaliation v. Association in the Prima Facie Case Advocating for a group does not meet the because of prong of the prima facie case of association discrimination but may be retaliation. See Sifre,, 38 F. Supp. 2d 91 (D.P.R. 1999); Barker,, 993 F.Supp.. 10 (D.Me 1998).

16 Direct Threat Employers can defend a claim of association discrimination where a relative or associate of a non disabled employee poses a direct threat to the workplace. Den Hartog,, 129 F.3d 1076 (10 th Cir. 1997)(Son of a teacher posed a direct threat to the student body as a result of his bipolar disorder and the teacher s discharge was not a violation of the ADA); Doe,, 2001 U.S. Dist. LEXIS (D.Ore( 2001) (Employee whose wife had AIDS did not pose a direct threat to the safety of skiers at the resort where the employee was a patroller.)

17 Important Cases Overly,, 2006 U.S. App. LEXIS (6 th Cir. 2006) Larimer,, 370 F.3d 698 (7 th Cir. 2004), cert. denied, 543 U.S. 984 (2004) Den Hartog,, 129 F.3d 1076 (10 th Cir. 1997) Tyndall,, 31 F.3d 209 (4 th Cir. 1994) Tabachnik,, 2004 U.S. Dist. LEXIS 3405 (S.D.N.Y. 2004) Doe,, 2001 U.S. Dist. LEXIS (D.Ore( 2001)

18 Important Cases Jackson,, 96 F.Supp.2d 873 (S.D. Ind. 2000) Abdel-Khalek Khalek,, 1999 U.S. Dist. LEXIS 2369 (S.D.N.Y. 1999) Dollinger,, 44 F.Supp. 2d 467 (N.D.N.Y. 1999) Sifre,, 38 F.Supp.. 2d 91 (D.P.R. 1999), aff d,, 214 F.3d 23 (1 st Cir. 2000) Barker,, 993 F.Supp. 10 (D.Me( 1998) Padilla,, 958 F. Supp. 124 (W.D.N.Y. 1997)

19 Family and Medical Leave Act 29 U.S.C requires certain employers to provide employees with up to 12 unpaid weeks of leave for illness or to care for an ill family member. Must be an employer within statutory definition. See 29 U.S.C Employee must have requisite number of hours. See 29 U.S.C Included is care of spouse, daughter, son or parent. 29 U.S.C Care of an ill associate or other relative is not covered.

20 Family Medical Leave Act Intermittent leave is permitted. 29 USCS 2612; 29 CFR An employee can also work a reduced leave schedule which is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. 29 CFR There is no limit to the size of the increment of leave taken. For example, an employee can take an hour of FMLA leave for a doctor s appointment.