ADA “Association Discrimination” Claims

Michele Aiken April 10th, 2008

Most employers are familiar with the “usual” ADA discrimination prohibitions - namely that any employer with 15 or more employees may not discriminate against an employee who: has a physical or mental impairment which limits one or more major life activities; has a history of such impairment; or is regarded as having such impairment. However, there is another, lesser known, discriminatory prohibition covered under the ADA which is becoming more prevalent - that of association discrimination.

In addition to the three prohibitions listed above, the ADA also forbids an employer from discriminating against an employee who has a relationship or association with an individual who has a physical or mental impairment which limits one or more major life activities. According to the EEOC, the purpose of this provision is to prevent employers from taking adverse employment actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.

A familial relationship is not required to support a claim of discrimination by association. The association may be with a family member or anyone else with whom the employee has an association. For example, an employer would violate this provision of the ADA if it took adverse employment action against an employee who volunteers at a homeless shelter which has a high population of HIV/AIDS individuals, if the employer’s decision was based on concerns about the disabilities of the individuals that the employee works with at the shelter.

The association provision does not require an employer to provide a reasonable accommodation to a person without a disability on the basis of that person’s association with a disabled individual. However, an employer must avoid treating an employee in a different manner than other employees based on the employee’s relationship or association with a disabled person. For example, an employer would not be required to modify its leave policy for an employee who needs time off to care for a disabled child as a “reasonable accommodation” under the ADA.

According to the EEOC, types of employer conduct that would be prohibited under the association provision include:

  • Terminating or refusing to hire an individual due to his/her known association with a disabled individual
  • Denying an employee promotion or advancement opportunities due to the employee’s association with a disabled individual
  • Denying an employee health care coverage that is available to other employees because of the disability of someone with whom the employee has an association

In February 2008, the Seventh Circuit handed down a decision in an ADA association discrimination case - Dewitt v. Proctor. In that case, a nurse was fired by the hospital due to the excessive health care costs incurred by her husband during his treatment for prostate cancer. In its decision, the Court held that an individual may establish a case for association discrimination under the ADA by showing that:

1) The individual was qualified for the job at the time of the adverse employment action;

2) The individual was subjected to an adverse employment action;

3) The individual was known by the employer to have a relative or associate with a disability; and

4) The individual’s case falls within one of three categories: the employer believes the individual will be: costly to the employer, distracted from work, or a possible threat in spreading the disabling condition.

If the individual is successful in establishing these requirements, the burden then shifts to the employer to prove a non-discriminatory reason for the adverse employment action in question.

With the increased litigation being brought under the association provision, the EEOC is increasing its scrutiny of allegations of association discrimination made by employees. Employers would be well-served to review their own policies and procedures with counsel to ensure that they don’t run afoul of the ADA’s prohibition against association discrimination.

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