In addition to prohibiting discrimination against qualified employees and applicants with disabilities, the Americans with Disabilities Act (ADA) prohibits employment discrimination against someone, regardless of whether he has a disability, because of his known relationship or association with a disabled person. The disabled person with whom the employee or applicant is associated need not be a family member for the protection to apply. The focus is on whether the employer treated the applicant or employee worse than others based on his relationship or association with a disabled person. Several recent court decisions involving “association” claims under the ADA illustrate how these protections operate.
Three Types of Claims
The Seventh U.S. Circuit Court of Appeals, which has jurisdiction over Indiana, Illinois, and Wisconsin, has defined three distinct types of association discrimination claims under the ADA. The first type, which is sometimes referred to as an “expense” claim, occurs when an employer that provides health insurance benefits allegedly tries to avoid the cost of medical care for an employee’s or applicant’s disabled dependent by declining to hire the applicant or discharging the employee. The second type of claim, sometimes called a “risk-of-transmission” claim, occurs when the employer allegedly denies an employment opportunity out of fear that the applicant or employee will catch a disabling condition from someone with whom he associates in a family relationship, romantic relationship, or even in the course of doing volunteer work. The third type of claim, often called a “distraction” claim, occurs when an employer allegedly treats an applicant or employee worse than others out of a concern that she will be distracted by the need to care for someone who has a disability.
Fear of Expensive Health Care Costs
A federal court in Kansas recently addressed a case in which the employee raised an expense claim under the ADA’s association provision. The employee’s wife had been diagnosed with end-stage renal disease, which resulted in substantial health insurance claims against the company’s medical plan. The employer was a family-owned business whose president routinely reviewed employee-by-employee medical claim costs under the company’s group health insurance plan.
The company terminated the employee because he allegedly wasn’t meeting performance expectations. However, the employee produced evidence that called into question whether he had ever been counseled about performance deficiencies and showed that the criteria for his termination were subjective. The court concluded that based on that combination of factors, a jury should decide whether his termination was truly based on poor performance or was in fact motivated by concern over the ongoing cost of his wife’s medical claims.
You can reduce the risk of expense claims by training managers not to make even casual offhand remarks about actual or supposed individual claims costs under your organization’s group health insurance program. Also, claims cost information should, whenever possible, be reviewed only by people who aren’t making termination recommendations or decisions and should be limited to aggregate rather than individual claim amounts. If there’s a business need to review individual claims information, the information should be seen by the appropriate personnel on a “need to know” basis only and kept strictly confidential.
Fear of Catching Something
The association claim involving an employer’s fear that an applicant or employee will catch a disabling condition has rarely been invoked. The Equal Employment Opportunity Commission, which enforces the ADA, has provided an example of a restaurant owner who discovers that the chef has a significant other who is HIV-positive. The owner fires the employee out of fear that he will contract the disease and transmit it to customers through the food. The chef’s termination would violate the ADA’s association provision. You can avoid such claims by having effective review procedures for hiring and termination decisions to ensure they’re based on relevant information and not on unlawful considerations.
Fear of Outside Distractions
A federal appeals court recently addressed the third type of association claim, in which an employer fears that an employee will be distracted by the need to care for someone with a disability. A Kentucky woman lost her job after disclosing to her employer that her husband had been diagnosed with a degenerative brain disease. She had informed her immediate supervisor of her husband’s illness. Soon after, her employer went through a corporate merger, and she began receiving negative performance feedback for the first time. She was subsequently placed on a performance plan and demoted to a position in which she was successful until another reorganization occurred. She then received additional negative performance feedback and was terminated based on inadequate timeliness and responsiveness.
The employee claimed her termination was actually related to her husband’s illness, pointing to comments made by her supervisor before her demotion about whether she could continue to perform her sales job in light of her husband’s condition. However, the court looked to the fact that the supervisor wasn’t involved in the decision to terminate the employee and granted dismissal before trial to the employer.
In another recent distraction case, decided by a district court in Illinois, a church receptionist had consistently declined requests to work on weekends because her daughter, who had mental disabilities and lived in a residential care facility during the week, would visit her on the weekends. After a series of issues with her work performance, the receptionist arrived at work an hour late when her daughter had a difficult episode and was fired the next day for “continued poor performance.” Again, the court found that despite the apparently suspicious timing, the termination was actually for the stated reason of poor performance, and it dismissed the case in favor of the employer.
You can avoid distraction cases by training managers not to assume that employees who have caretaking responsibilities for individuals with disabilities will be unable to meet attendance, travel, productivity, or other performance expectations.
It’s important to keep in mind that the ADA doesn’t require you to provide accommodations to applicants and employees who are not themselves disabled. The only requirement is that you must not treat employees or applicants differently based on their association with a person who is disabled.
Of course, the federal Family and Medical Leave Act (FMLA) may provide leave rights to eligible employees to care for certain close family members who have serious health conditions. Accordingly, unless the employee is entitled to FMLA leave or another form of leave provided by state or local law or company policy, you are entitled to enforce uniformly applied attendance policies and other performance expectations. The challenge is to ensure that enforcement is evenhanded and that the employee responsible for the care of someone with a disability isn’t held to a stricter attendance or performance standard.