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ADA Liability for Discrimination Based on a Family Member’s Disability

Most people know that employers cannot discriminate against employees on the basis of certain characteristics such as age, race, gender, and disability. Such discrimination is typically barred by federal, state and local statutes. However, a recent federal court decision by the Second Circuit Court of Appeals brings attention to a lesser-known area of possible discrimination – “associational discrimination,” which is prohibited by the Americans with Disabilities Act.

The case of Kelleher v. Cook involved a claim by an employee that he was improperly discriminated against by his employer not because the employee himself was disabled, but because the employee’s daughter suffered from a severe neurological disorder known as Rett Syndrome, which from time to time required emergency medical care. The employee disclosed his daughter’s condition telling his employer that he might need to rush home immediately after his shift to care for her. The employer generally “expected” employees to remain on-site after punching out at the end of their shifts (which itself raises separate employment law issues).

The employee also requested permission to work 8-hour shifts for one week, rather than his normal 10-12-hour shifts. The employer responded that the employee’s “problems at home were not the company’s problems.” When the employee missed a day of work because of his daughter’s hospitalization, he was demoted, and after certain other incidents, was eventually terminated. The employee then sued for discrimination. The trial court dismissed the lawsuit, but the Second Circuit reversed, finding that the employee’s complaint stated a claim for associational discrimination.

A party claiming associational discrimination must show the following:

  1. The employee is qualified for the job;
  2. He/She has been subjected to adverse employment action;
  3. He/She Is known to have a relative or associate with a disability; and 
  4. The circumstances surrounding the adverse action raise a “reasonable inference” that the relative’s disability was a determining factor in the employer’s decision.

Unlike in cases where an employee alleges discrimination based upon his or her own disability, in cases of associational discrimination, an employer is not required to provide a “reasonable accommodation.”  

In the Kelleher case, although the employer was not culpable for refusing the employee’s requests for a modified schedule, or for terminating him as a result of his missed work, the employer’s comments were an issue. The Court found that the statement about the employee’s home problems not being work problems could create an inference that the daughter’s disability was the reason for the termination. The Court referenced a similar case where inference was found where an employer indicated concern that the relative’s disability would distract the employee at work. As a result, the Court reinstated the employee’s claim.

There are several lessons for employers and employees from this case:

  1. An employer has an obligation to provide an employee with reasonable accommodations in a matter involving a disabled employee. However, there is no such obligation where the employee’s relative is disabled. 
  2. Employers must take care of addressing job performance issues where it is known that the employee has a relative with a disability so there is no inference that the relative’s disability was the determining factor for the employer’s adverse employment action.
  3. An employee in this situation could rely on other statutes, including the Family Medical Leave Act, to address the relative’s care needs. 

If you are considering or facing a discrimination claim or you are concerned about how to handle an employment law issue, contact one of our attorneys for advice. 

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