Published in the New Hampshire Business Review
By: Jennifer L. Parent
Q. Mark had an excellent working relationship with his Vice President, Carole. Mark’s performance evaluations were very good and he was assigned to all the plum jobs that came in the door. But then Mark’s performance started to slip. After finding out that Mark’s newborn daughter has a severe disability, Carole expressed concern to Mark that he will be unable to meet the demands of his job due to this new factor in his life. She has started to criticize his work product in front of others, started giving him negative performance evaluations, and despite telling Mark he would get the big Acme deal, she gave it to Bob instead. Mark complains to Human Resources about Carole’s behavior. Bue since he is not the one disabled, there are no liability concerns for the employer, right?
A. Generally, to state a claim under the Americans with Disabilities Act, an employee must show that the employee has a disability within the meaning of the law, was able to perform the essential functions of the job (with or without reasonable accommodation), and was discharged because of that disability.
The “association discrimination provision” of the ADA, however, extends protections to qualified employees who are adversely treated based on stereotypes and assumptions arising from that employee’s relationship with particular disabled persons.
To establish associational discrimination, an employee must prove that he or she:
• was subjected to an adverse employment action;
• was qualified for the job at the time of the action;
• at the time of the adverse employment action, the employer knew the employee had a relative or associate with a disability; and
• the circumstances raise a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s action.
The protection relates to the disability suffered by the person the employee is known to be associated with. The relationship can be with a family member or it can be with a third party.
What Can a Company Do?
The Equal Employment Opportunity Commission (EEOC) provides guidance and examples of how this association discrimination provision applies in employment settings. As detailed, the scope of conduct prohibited includes
• taking adverse employment action against an applicant or employee such as refusing to hire or terminating someone;
• denying opportunities for advancement or promotion;
• denying benefits or privileges of employment available to others;
• harassment of an employee all because of the disability of someone with whom the employee has a relationship or association.
For example, an employer cannot refuse to hire the best qualified job applicant because it learns the applicant has a disabled child at home and fears that the person will be out of the office a lot or unable to travel.
Similarly, an employer may not tell an employee he cannot bring his Down Syndrome child to the July 4th cookout out of fear that others will be uncomfortable.
Where the employee is not the one disabled, an employer need not provide the employee with a reasonable accommodation under the ADA.
For example, the ADA does not mandate leave for an employee to care for his wife who has multiple sclerosis. Employers must be careful, however, as other laws (such as the federal Family and Medical Leave Act) may require such a leave. Moreover, there may be good reasons for a company to provide or offer some flexibility in these situations to retain a good employee. In all cases, companies should be sure to apply their policies and actions consistently.
The EEOC has also issued Enforcement Guidance on this issue, saying that “unlawful disparate treatment of a caregiver” also can arise under the ADA where an “employer discriminates against a worker based on his or her association with an individual with a disability.” Gender-based stereotypes may also raise sex discrimination claims if female caregivers or male caregivers are treated adversely because of unlawful stereotypes.
What can a company do? Train managers about the legal obligations concerning their treatment of workers under the ADA and other laws. Implement policies on equal opportunity and that prohibit discriminatory conduct in the workplace. All employees should be trained on those policies. These are effective risk management tools to safeguard against claims.
In the situation above, HR will need to conduct an investigation into Mark’s complaint. This will uncover information about Mark’s performance issues and Carole’s conduct.
Once the facts are gathered through the investigation, documents reviewed, and the credibility of witnesses assessed, the company should determine whether Carole’s conduct amounts to harassment under the company’s policy based on Mark’s daughter’s disability. Depending on the outcome, appropriate disciplinary or other action should be taken, if necessary.
Even if the investigation is inconclusive, the company may consider retraining and reminding employees about the anti-discrimination policies and appropriate behavior in the workplace.
Jennifer L. Parent is a director in the Litigation Department and Chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, P.A. and can be reached at (603) 628-1360 or [email protected]. She is a member of the New Hampshire Bar Association, Massachusetts Bar Association, U.S. District Court for the District of New Hampshire, and First Circuit Court of Appeals.