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German-style work council in peril at Chattanooga VW plant?

April 24th, 2015  |  Pamela Wolf  |  Add a Comment

The German-style “work council” is once again drawing attention amid media reports that United Auto Workers Local 42 is either seeking or about to seek recognition as the exclusive bargaining agent of employees at the Volkswagen Plant in Chattanooga. Local 42’s president said that more than 50 percent of employees have signed authorization cards that would permit the German automaker to recognize the union as the exclusive bargaining agent of blue collar workers at the plant, according to the Times Free Press. If that happens, the first American experiment with European-style work councils may end up with a less-than stellar score.

In July 2014, following a high-profile union election defeat in an area of the country that has not taken well to unions, the UAW announced the formation of Local 42. During the election campaign there were charges that VW and the union had struck a deal in advance that would put the UAW in the bargaining seat. According to the UAW, Local 42 was organized by VW workers with the goal of giving employees a voice in the workplace through the VW works council. It collects no dues and does not operate as a traditional union.

Representative engagement. In December 2014, Local 42 garnered enough employee support to become recognized under Level 3—the highest level— of Volkswagen’s Community Organization Engagement (COE) policy.

To be eligible to engage with the company, an organization must “exist for the primary purpose of representing employees and their interests to employers consistent with the National Labor Relations Act.” Access to management depends upon levels of employee support for the organization:

  • Organizations with greater than 15-percent support of employees in the relevant employee group (Level 1) may use employer-provided space once each month for internal employee meetings on nonwork time; may post announcements in company-designated locations; and employee-only organizational representatives may meet monthly with VW HR “to present topics that are of general interest to their membership.” 
  • Organizations with greater than 30-percent support (Level 2) may do all of the above, plus increase their meeting times on the employer’s premises to once per week; invite external representatives to meet on-site (again on nonwork time) once monthly; post materials on a “branded” or dedicated posting location; and meet quarterly with a member of the Chattanooga Executive Committee. 
  • Since access or engagement opportunities are cumulative, organizations with greater than 45-percent support (Level 3) may additionally meet on-site (on nonwork time) “as reasonably needed;” and meet biweekly with HR and monthly with the Chattanooga Executive Committee.

Rival union. In February 2015, the American Council of Employees (ACE) was verified at Level 1 under the COE policy. According to some media reports, ACE is a group that may have been backed by business and political interests. However, ACE calls itself “an independent employee council created to ensure that all VW Chattanooga employees have a voice on the Volkswagen Global Works Council.” The organization also says that it is a local, not national, group that has no outside influence or political agenda.

ACE officials are not happy with reports that Local 42 is seeking recognition through authorization cards instead of by secret ballot election, according to the Chattanoogan. If the reports are true, they may give new life to earlier charges of a deal between VW and the UAW.

Volkswagen’s reaction. The German automaker offered little that would shed light on these reported developments: “Volkswagen Chattanooga management have been meeting regularly with UAW Local 42 and the American Council of Employees, according to the level of support they have achieved within the workforce as determined by our Community Organization Engagement policy,” a VW representative told Employment Law Daily. “The policy has been an effective way to maintain dialog with each of the groups, and we intend to continue with the COE policy at this time.”

Because the meetings under the policy are internal, the VW representative could not comment on any of the topics discussed.

Notably, the UAW’s Local 112, undeniably similar to a German-style work council, was formed in October 2014 to provide representation for workers at a Mercedes-Benz U.S. International (MBUSI) assembly plant in Vance, Alabama, near Tuscaloosa.

The UAW declined to comment to Employment Law Daily on behalf the union or Local 42’s president.

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State voluntary veterans’ preference laws keep marching along

April 23rd, 2015  |  Joy Waltemath  |  Add a Comment

Flying somewhat under the radar is a plethora of new (and relatively new) state laws that authorize private employers to establish voluntary veterans’ preference employment policies. These laws allow employers to implement a voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. Some laws include promotion; others do not so specify. Some specify a veterans’ preference for retention during a reduction in force. A few extend the preference to spouses under certain conditions. Almost all state in some fashion that granting a veterans’ preference won’t violate any local or state equal employment opportunity law or regulation, including antidiscrimination provisions.

Take, for example, California. California AB 1383 is working its way through the state assembly. It would amend Title 2 of the Government Code by adding an article that would allow private employers with one or more employees to voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. Veteran is defined in the bill as an individual who served in the U.S. Armed Forces on active duty and who was discharged or released with an honorable discharge.

The bill also says employers may require that a veteran submit a Department of Defense Form 214 (relating to separation from military service) to be eligible for the preference. Granting a veterans’ preference, in and of itself, would “be deemed not to violate any local or state equal employment opportunity law or regulation.”

Other recent state laws. A little research reveals the following recent state activity (but remember this is a blog, not a research project; there could be others out there): Alabama has a similar bill (S.B. 269) pending in both its House and Senate.  Arizona enacted a law (H 2094) April 6 of this year. Last year California enacted legislation (Ch. 645 (A. 1397), L. 2013) to include the veterans’ preference system among employment selection devices of the State Department of Human Resources.

Florida’s law (H. 7015, L. 2014), enacted last year, extends further and allows preference in hiring to an honorably discharged veteran; the spouse of a veteran with a service-connected disability; the un-remarried widow or widower of a veteran who died of a service-connected disability; or the un-remarried widow or widower of a member of the U.S. Armed Forces who died in the line of duty under combat-related conditions.

Georgia sent its voluntary veterans’ preference bill (HB 443) to the governor on April 6, 2015; Indiana has a bill pending (H. 1530); and Idaho’s law, passed in 2014, says that private, nonpublic employers may give preference in the hiring and promotion of employees to those who are eligible for public employment preferences (S. 1316). Iowa’s law is broader, like Florida’s: It extends not only to veterans but also to the spouse of a veteran who has sustained a permanent, compensable, service-connected disability and the surviving spouse of a deceased member of the United States armed forces who died while serving on active duty during a time of military conflict or who died as a result of such service (S. 303, L. 2013).

Kentucky recently enacted a law allowing private employers to have a voluntary veterans’ preference employment policy (H. 164, L. 2015); Maine did last year (Ch. 576 (S. 735). Massachusetts’ law, also enacted in 2014, includes a voluntary preference for spouses of disabled veterans and surviving spouses of veterans (Ch. 62 (S. 2052). Michigan’s 2014 law, Public Act 508 (H. 5418), does not extend to spouses.

Both Montana (S. 196) and Nebraska (L.B. 272) passed laws in 2015; only Nebraska’s includes spouses of veterans under certain conditions. New Hampshire (S. 55) has a bill pending. Although New Jersey passed a law in 2014 providing a veterans’ preference in appointments to the State Police (Ch. 51 (A. 1510)), the state has a handful of other veterans preference bills pending, including for school districts and non-civil service positions. New York (S. 4326) also has legislation pending this year that has a strict definition of veteran and, if passed, would not apply to spouses.

Oklahoma’s governor signed 2015 legislation (S. 195) on April 10. Oregon enacted its law last year to allow private employers to give preference in hiring and promotion to specified veterans (Ch. 86 (H. 4023). Also last year, South Carolina accomplished the same thing, essentially, by amending its fair employment practices law to provide that it is not an unlawful employment practice for a private employer to give hiring preferences to a veteran, and to extend the preference to the veteran’s spouse if the veteran has a service-connected permanent and total disability (H. 4922).

Texas has a couple of identical bills (S. 1713 and H. 3547) pending in committee. Effective May 12, 2015, Utah private employers will be allowed to create voluntary, written veterans’ employment preference programs (H. 232). Finally, Virginia’s law relating to preference for veterans and spouses of certain veterans in private employment (Ch. 570 (S. 516)) was enacted last year.

Early adopters. It appears that Washington passed its voluntary veterans’ preference law for private employers in 2011; Minnesota followed in 2012; and Arkansas passed a similar law in 2013.

What about Title VII? The Equal Employment Opportunity Commission Compliance Manual notes that federal, state, or local laws that confer special rights or privileges on veterans with respect to hiring are not affected by Title VII. However, if the veterans’ preference is not required by a local, state, or federal law (and these private employer laws are voluntary), the situation is not quite as clear.

Veterans’ preference statutes have, in the past, operated “overwhelmingly to the advantage of men,” the EEOC noted in a 1990 Policy Guidance. Things have changed in the past 25 years, but that Guidance stated that “where an employment preference is conferred upon veterans on the employer’s own initiative and is not mandated by statute, the discriminatory impact of the preference is not shielded from scrutiny under Title VII. As the language of Section 712 makes clear, the deference provided by that section applies only to veterans’ preferences that are created by law and not to those that are voluntarily accorded to veterans by employers. Falling outside the terms of Section 712, voluntary preferences are subject to Title VII adverse impact analysis.”

Better pay attention to these.

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Firefighter’s Facebook insults and threats directed at police department justified his termination

April 17th, 2015  |  David Stephanides  |  Add a Comment

A firefighter who took great offense at the arrest of his wife and promised to the police to “smear this [expletive] all over the place,” a promise he kept in several Facebook postings that disparaged the arresting officer, his supervisor, and the police department generally, was justifiably terminated, an arbitrator ruled. Among the comments posted to Facebook were various egregious insults (“these morons,” “you incompetent Barney Fife sob,” “corrupt desk jockey”) and threats (“I’m coming to make you miserable,” “I’ll take your head,” “I don’t know where you live and don’t have your number…but I will.”) (The City of Ada, Oklahoma and IAF, Local 2298, AFL-CIO/CLC. Dec. 19, 2014. M. Zane Lumbley, Arbitrator).

It all started when the firefighter’s wife, who was a passenger in a vehicle, notified her husband that the police had just stopped her and the driver for an illegal turn. The officer then administered field sobriety tests to both occupants of the car, which they failed. The husband arrived at the scene and unsuccessfully urged the officer the let him take his wife home. Both occupants of the car were then arrested, the wife for public intoxication. The husband arrived at the booking station and escalated his efforts, going to the officer’s supervisor to plead for her release. When that failed, he called the officer profane names, physically threatened him, and made known his general unhappiness with police department operations.

At this point, the situation blew up on the firefighter. The police arrested him for the threats, and his employer terminated him for numerous instances of workplace harassment. The firefighter filed a grievance contesting the termination on the ground that the employer violated his due process rights, particularly by failing to obtain his side of the story before making the termination decision and disparate treatment.

The arbitrator denied the grievance. No evidence existed that the officer was doing anything other than carrying out his duties. The firefighter’s response during the arrest and booking were, by themselves, sufficient to justify discipline. As for the Facebook postings, the firefighter had to know that he was jeopardizing his job when he made them. (in fact, he testified that he was willing to sacrifice his job to engage in the campaign). The threats were of particular concern; the fact that he never carried them out was irrelevant. The firefighter’s Facebook posts were egregious, they clearly constituted workplace harassment, and they clearly damaged his working relationship with the police department.

As for the due process charge, the termination decision was not reached prior to the investigation. During the investigation, the firefighter actually rebuffed efforts to discuss the matter. Although the employer could have been more forthcoming in responding to union requests for information, the delays caused no prejudice. Also, no disparate treatment occurred because the person the union offered as a comparison was not a union member. Disparate treatment required a comparison between similarly situated employees. For all of those reasons, the employer had just cause to terminate the firefighter.

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A big wave of FCRA cases and an emerging voice of reason

April 14th, 2015  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

In penalizing arguably minor technical violations of complex notice requirements, the Fair Credit Reporting Act (FCRA) has spawned a rapidly growing docket of individual cases, class actions, and multi-million dollar settlements, yet it seems we have not reached high tide. In case after case, with a few notable exceptions, courts have refused to toss out claims arising from an employer’s failure to provide stand-alone advance notice consisting solely of a disclosure that a background check might be used to make an employment decision; to timely give an applicant a pre-adverse-action notice of negative information (a copy of the report and summary of FCRA rights); or to satisfy post-adverse-action notice requirements.

As if the plain statutory language of the FCRA weren’t demanding enough for employers, one plaintiff recently avoided dismissal by arguing that a pre-background check disclosure in a separate document containing no extra language was not really “stand-alone” because it was given at the same time as a separate acknowledgement. Wow. Notice, notice, and more notice, in a specified format, at a specified time, or pay damages and attorneys’ fees, regardless of intent—easy money for plaintiffs it would seem. If willful intent is shown (“reckless disregard” under Safeco Insurance Co. of America v. Burr), punitive damages are also on the table.

Recent typical cases. The latest wave of FCRA cases presents what is becoming a typical fact pattern—failure to strictly comply with notice requirements or failure to provide a copy of the report and summary of rights. For example, a federal court in Virginia denied summary judgment on two FCRA class claims by an applicant whose offer of employment was revoked due to a consumer report. Rejecting the employer’s claim that it complied with the spirit of the Act, the court noted that the pre-background check notice provision was clear: A disclosure that a report may be used for employment purposes must be made in a document consisting “solely” of the disclosure. Here, the document containing the disclosure also had other language, including a waiver of liability. In addition to this disclosure claim, a second class was certified involving an alleged violation of the requirement that a copy of the report and a description of consumer rights be provided before an adverse employment action is taken (Milbourne v. JRK Residential America, LLC). (Of note, the court previously ruled that a Rule 68 offer of judgment that seemed to favor the plaintiff did not satisfy his claim because the FCRA does not cap punitive damages.)

In another case, a federal court in New York refused to dismiss a putative class action alleging a property management firm, which had criminal record checks done before hiring staff, violated the FCRA by failing to make a proper pre-background-check disclosure and then revoking a job offer before providing a notice of the named plaintiff’s FCRA rights and a chance for him to dispute the background check, which inaccurately reported four criminal convictions. Also refusing to dismiss the claim that the violation was willful (opening the door for punitive damages), the court explained that an erroneous reading of FCRA requirements is “reckless” if it is “objectively unreasonable,” and a disclosure that included a liability waiver deviated so far from the FCRA as to be “objectively unreasonable” (Jones v. Halstead Management Co., LLC).

Other FCRA decisions include a denial of summary judgment to Johnson & Johnson and a grant of summary judgment for an applicant whose offer was rescinded based on incorrect information before she was given a required FCRA notice (Miller v. Johnson & Johnson). Also, a nationwide class complaint was filed against Genesis Healthcare, which operates long-term care facilities, alleging that it failed to give applicants a copy of their background reports and a summary of their rights before using the information for adverse decisions. And a national grocery retailer (parent of Food Lion, Bottom Dollar Food, Hannaford, and others) agreed to pay $3 million to resolve FCRA claims by a class of nearly 60,000 employees and job applicants (the plaintiffs sought preliminary approval of the settlement, reached after two days of mediation, according to their memo). Meanwhile, a California driver filed a class complaint against Uber Technologies alleging that the mobile app-based car service runs background checks on applicants without their knowledge.

Departures from the typical. In a small departure from the usual FCRA dispute, a federal court in Ohio found triable questions on whether a company’s form email telling a job applicant it was “rescinding your offer” was an adverse employment action under the FCRA or was merely a notice that his application was on hold pending any challenge to his consumer report (which erroneously listed a criminal conviction). In a partial victory of sorts for the employer, the court denied the plaintiff’s motion for class certification, finding his circumstances too unique to satisfy Rule 23 commonality and adequacy requirements (Cox v. Teletech@Home, Inc.).

In yet another case that varies from the usual, a federal court in Massachusetts denied summary judgment on a terminated employee’s FCRA claims after finding a question of fact on whether his employer performed a background check due to suspected misconduct, and consequently whether the investigatory report was excluded from the FCRA’s definition of a “consumer report.” Though the employer asserted that it was investigating misconduct, the timing and other facts suggested it was on a fishing expedition to stop the employee from filing a discrimination complaint against the company (Mattiaccio v. DHA Group, Inc.).

“Stand-alone” may require more than you think. In one pending FCRA case against Whole Foods, a plaintiff complained that even though the company provided the pre-background check notice in a separate document all by itself, it violated that “stand-alone” requirement because it was presented at the same time as a separate document containing an authorization and release of liability. Though the plaintiff attached the forms to the complaint, the court refused to consider them on a motion to dismiss and found it was enough that the plaintiff alleged that the forms had to be read together because they were presented at the same time (Speer v. Whole Foods Market Group, Inc.). (Whole Foods also was sued in a California class action under the FCRA.)

Voices of reason. Eschewing an unduly strict reading of the FCRA, a federal court in California has refused to ride the recent wave of lawsuits. Noting that claims often survive dismissal even if based on minor violations, the court would have none of it, dismissing the action against Paramount Pictures in a terse opinion, and with prejudice. In this case, in addition to the required pre-background check disclosure language, Paramount’s disclosure document to applicants included this statement: “I certify that the information contained on this Authorization form is true and correct and that my application may be terminated based on any false, omitted, or fraudulent information.”

Rejecting the plaintiff’s claim that this violated the directive that disclosure be made in a document consisting “solely” of the disclosure, the court distinguished other cases involving the inclusion of waiver language by stating that unlike those cases, the “one-sentence certification” language here was closely related to the statutorily permitted authorization and would “similarly serve to ‘focus the consumer’s attention on the disclosure.’” The court further concluded that even if the disclosure did not comply with a “strict reading” of the FCRA, it was “not plausible that Paramount acted in reckless disregard of the requirements of the FCRA by using this language” (Peikoff v. Paramount Pictures Corp.).

Similarly, a federal court in Massachusetts granted judgment for Uber Technology and Raiser LLC on the FCRA claims of a rejected driver, finding that the online disclosure that a background check would be done was “clear and conspicuous,” even though one had to scroll down to see the whole thing, and “a few sensible words explaining the reason for the background check could hardly qualify as an ‘objectively unreasonable’ act” supporting a claim for a willful FCRA violation (Goldberg v. Uber Technologies, Inc.).

Watch your waiver. Comparing the Peikoff ruling to the Jones v. Halstead case above, it is clear that courts really take umbrage with pre-background check disclosures that have language waiving an employer’s liability. As to more “minor” FCRA violations, where the first disclosure includes extraneous language like that found in Peikoff or Goldberg, we now know that at least some courts look to the reason behind the “stand-alone” notice requirement—to focus the applicant or employee’s attention on the disclosure that a background check may be used for employment decisions.

Notice, Notice, Notice. It will be interesting to see if Piekoff and Goldberg are joined by other decisions applying a bit of common sense when faced with minor technical violations. In the meantime:

  • Before obtaining a consumer report with credit or criminal background info:
    • In a stand-alone document, state that the information may be used for employment decisions. Do not put the notice in an application, and avoid extra information. Present any release form in a separate document to be read separately.
    • If seeking an “investigative report” (based on personal interviews) disclose the individual’s right to a description of the nature and scope of the investigation.
    • In a separate document get written permission to do the background check.
    • Certify to the company supplying the report that you gave notice; got permission; complied with FCRA requirements; and will not violate federal or state laws.
  • Before taking an adverse action based on the report, provide a copy of the consumer report and “A Summary of Your Rights Under the Fair Credit Reporting Act.” Best practice is to give the individual a chance to challenge or explain negative information.
  • After taking the adverse action, tell the individual (orally, in writing, or electronically):
    • that he or she was rejected because of information in the report;
    • the name, address, and phone number of the company that sold the report, that it did not make the hiring decision, and it cannot provide specific reasons for it; and
    • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

In view of the complexity of the FCRA’s requirements and the penalties for even unintentional noncompliance, employers that rely on consumer reporting companies for background checks rather than doing their own footwork are well advised to seek the advice of an experienced employment law attorney before doing so to ensure full, technical compliance with the Act.

Additional resources. More information on FCRA requirements and recent cases can be found in a prior Employment Law Daily story: “Should employers go ‘old school’ in criminal background checks to avoid the FCRA?” Information can also be found in a joint publication from the EEOC and FTC: “Background Checks: What Employers Need to Know.” The FTC has also provided a summary of FCRA requirements in “Using Consumer Reports: What Employers Need to Know,” as well as information on recordkeeping requirements and proper disposal of background reports in “Disposing of Consumer Report Information? Rule Tells How.”

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Disability discrimination by association

April 9th, 2015  |  Kathy Kapusta  |  Add a Comment

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.

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