A New Mexico employer recently settled a lawsuit filed by the EEOC wherein the EEOC alleged that the employer discriminated against an applicant by failing to hire her because of her association with an individual with a disability. Specifically, the EEOC alleged that the employer did not hire the applicant, who had been working as a temp for the employer, because her three-year-old daughter was disabled under the ADA.
Under the terms of the settlement, the employer will have to pay $165,000, conduct annual training, and provide the applicant with a letter of recommendation.
Associational disability discrimination is a lesser-known claim under the ADA, but it is certainly important for employers to understand the basis for such a claim. Under the association provision of the ADA, an employee or applicant may claim that, because of his known relationship or association (family, friendship, etc.) with a person with a known disability, the employer discriminated against him.
The association provision of the ADA does not prohibit an employer from taking adverse employment action against an employee who is related to or associated with a disabled person; however, those actions may not be based on “unfounded concerns.” In the New Mexico case, the employer likely jumped the gun when it decided not to hire the applicant after she missed one shift due to her child’s illness, and a manager sent a text message that read, “[l]ook Melissa you have a child whom is medically disabled you do not belong in the workplace or in my clinic at NMO! Go home stay with your daughter that’s where you belong not here.” However, had the employer hired the applicant and found that she was an hour late every morning as a result of caring for her daughter, it could have followed its normal disciplinary procedures and may have been able to take an adverse action against her without inciting a lawsuit by the EEOC.
In other words, the association provision of the ADA does not require an employer to provide reasonable accommodation to an employee in order to allow them to care for a disabled person with whom they have a relationship or association. However, keep in mind that under the Family Medical Leave Act, an eligible employee may be entitled to unpaid leave, including intermittent leave, in order to care for a family member with a serious health condition.
The association provision overlaps the Genetic Non-Discrimination Information Act (GINA) as well. GINA prohibits, among other things, employment discrimination with regard to an employee or applicant’s genetic information, such as family medical history. If for example, an employer terminated an employee because it learned that the employee’s relatives suffered from breast cancer, such an action would likely violate both GINA and the association provision of the ADA.
If you have a question, the St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.