About Us  |  About Cheetah®  |  Contact Us

Disability discrimination by association

April 9th, 2015  |  Kathy Kapusta

In addition to protecting qualified applicants and employees with disabilities from employment discrimination, the ADA also prohibits “association discrimination:” discrimination based on an applicant’s or employee’s relationship or association with an individual with a disability. As the EEOC explains in a 2005 guidance entitled “Questions and Answers About the Association Provision of the Americans with Disabilities Act,” the purpose of the ADA’s 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.

Several recent court rulings addressing this issue serve as a reminder to employers that making adverse employment decisions based on association bias can be costly. In a March 2015 decision, a federal magistrate judge in Ohio ruled that a municipal employee who was discharged just two days after the city received a $20,000 medical bill for her husband’s cancer surgery can proceed to trial on her ADA claim under the “expense theory” of association discrimination. Citing to the Sixth Circuit’s 2011 decision in Stansberry v. Air Wisconsin Airlines Corp., the magistrate explained that this theory of associational discrimination “covers situations where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer’s health plan, which is costly to the employer.”

Budget breaker. In this case, 12 days after the employee’s long-term partner was diagnosed with colon cancer, the couple married and she swiftly added him to the medical insurance she received through the city. About a month later, her supervisor allegedly stated that her husband’s illness was going to affect the city’s budget. Over the next few months, the employee took time off to care for her husband. She was ultimately fired two days after the city received the husband’s medical bill. On that same day, the couple’s medical benefits were also terminated.

While the court found the supervisor’s budget statement may not have been direct evidence of bias, it could raise a reasonable inference that the husband’s disability was a determining factor in the termination decision. In addition, evidence that just two weeks before her discharge, she argued with her supervisor over leave for her husband’s chemotherapy, that the city was self-insured and that her supervisor expressed concerns that treating her husband’s illness would adversely impact the budget, and that she was terminated just two days after the hospital bill from her husband’s surgery was received for processing, cast doubt on the city’s assertion that she was fired for, among other things, insubordination. Because a reasonable jury could conclude that the supervisor would not have terminated the employee but for concerns regarding the costs of chemotherapy and other treatments, summary judgment as to her ADA claim was denied.

    Cancer treatment. Also in March 2015, a federal district court in Tennessee found evidence an employer knew that the expense of treating an employee’s wife’s cancer was high, that continued treatment would raise the cost of providing health benefits to its employees, that her medical expenses might be a problem in renewing the health insurance plan, and that the employee was discharged around the time of the plan renewal was sufficient to support the employee’s claim that the cost of insuring his wife was a motivating factor behind the decision to fire him. Accordingly, it denied summary judgment on his ADA association discrimination claim.

      Wellness remarks. However, a city employer’s remarks on the importance of a wellness program, absent other evidence that it was tracking the health expenses of an employee’s bipolar daughter or that such costs had increased, were not enough to suggest that the employee was fired due to association discrimination, a federal district court in Colorado ruled. Although the employee claimed her supervisor discriminated against her because her daughter was covered by her health insurance, she admitted that she had no idea how much her daughter’s medical expenses cost the city nor how those expenses compared to other employees and their family members. Instead of offering evidence that the city tracked her daughter’s health care costs or that it was unusually expensive, she merely stated that in “all” city meetings with HR managers and her supervisor present, statements were made on the importance of the city’s wellness program in lowering insurance premiums. This was simply not enough to raise an inference that the city took actions against her due to the expense of her daughter’s illness.

      Your job or your daughter. In yet another case decided in March 2015, a federal district court in New York found that a supervisor’s remarks to an employee stating that he was “letting her go” because he needed someone without children to work at the front desk and asking her how she could “guarantee me that [] two weeks from now your daughter is not going to be sick again … So, what is it, your job or your daughter?” could easily be viewed as a smoking gun admission that he believed her daughter was disabled and would be frequently ill and that her termination was directly motivated by his hostility toward her association with her child.

      During the six months that the employee worked for the employer, she took time off on several occasions to care for her infant daughter who was hospitalized on more than one occasion with breathing difficulties and diagnosed with reactive airway disease. Observing that the employee’s direct supervisor told her on the day of her return to work following an absence to care for her daughter that he was letting her go because he needed “someone who does not have kids who can be at the front desk at all times,” the court found that comment, together with his other statements such as “So what is it, your job or your daughter?” at the very least created a “thick cloud of smoke” sufficient to require the employer to “convince the factfinder that, despite the smoke, there is no fire.”

      Further, found the court, a jury could infer the employee’s supervisor knew her daughter was disabled as she was hospitalized on several occasions for days at a time due to difficulty breathing. In addition, she told her supervisor that her daughter was wheezing and, if an adult, would be considered asthmatic. Rejecting the employer’s contention that it believed the child was suffering from a number of temporary, isolated medical ailments, the court found that a reasonable factfinder could conclude her progression of illness and the employee’s statement that she had reactive airway disease provided the employer with knowledge that her daughter was disabled.

      Distracted. A federal district court in Tennessee ruled that an employee who took intermittent leave after her daughter was diagnosed with a mental impairment requiring “lifelong” care could proceed to trial on her ADA association discrimination claim. In this case, the employee began taking FMLA leave to care for her 21-year old daughter who, after suffering a “psychotic break,” was hospitalized and diagnosed with schizophrenia and depression. In this case, the employee claimed that her direct supervisor remarked that she was not focused and was missing too much work due to her daughter. She was ultimately fired, purportedly for performance issues.

      Denying the employer’s summary judgment motion, the court noted that the Sixth Circuit recognizes three theories of association discrimination: expense, disability by association, and distraction. Here, the “distraction” theory was at issue. Under this theory, an employee is inattentive at work because her child has a disability that requires her attention, but not so inattentive that to do her job to her employer’s satisfaction she would require an accommodation, such as shorter hours. In this case, the question was whether the employer acted out of unfounded fears that the employee’s association with her daughter would cause her to be distracted at work.

      In the court’s view, a jury could conclude that a determining factor in the termination decision was the employee’s association with her mentally impaired daughter. Among other evidence, the court noted that her supervisor allegedly said the employee should consider hiring a caretaker or babysitter because she was missing too much work; told her that she should consider long-term or permanent disability; and remarked that the employee was too distracted at work because of her daughter. Further, the record showed these comments were ongoing and persistent. Consequently, a jury could conclude the employee was fired because the employer knew she would continue to need FMLA leave for her daughter’s lifelong disability.

      Reverse association disability discrimination? Stating that the ADA does not provide for a reverse-association disability cause of action, a federal district court in Michigan found that a nurse supervisor’s allegations that her employer showed preferential treatment to a coworker because she had mentally challenged children failed as a matter of law. While the employee contended that she engaged in protected activity by reporting her supervisor’s favoritism of the coworker, the court, in granting summary judgment to the employer on her retaliation claim, observed that “favoring a person, associated or not associated with a disabled person, is not a violation of the ADA.”

      Employer takeaway. How can an employer reduce the risk of having to defend against an association discrimination claim? Regularly review your policies to ensure they prohibit all forms of discrimination, and that managers and supervisors are trained to understand this issue. They should also be trained to understand that the ADA does not require a family relationship for an individual to be protected by the association provision and that employment decisions should not be based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.