ILNews

DTCI: Disabilities by association

Back to TopCommentsE-mailPrintBookmark and Share

By Theresa R. Parish
 

parish Parish

Association discrimination under the American with Disabilities Act is a lesser-known type of discrimination that has been litigated infrequently in Indiana. However, this type of discrimination is a developing area of the law about which employers and practitioners should be well informed.

The “association” provision of the ADA protects applicants and employees from discrimination based on their relationship or association with an individual with a disability. The ADA prohibits covered employers from “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4).

In Indiana, there have been few reported cases involving association discrimination. Most 7th Circuit decisions considering association discrimination claims originated in Illinois district courts.

In 2008, Congress enacted the American with Disabilities Act Amendments Act. Since the passage of the ADAAA, the Equal Employment Opportunity Commission and courts have seen a steady rise in the number of disability claims filed. According to the EEOC’s website, in 2007 (one year before enactment of the ADAAA), there were 17,734 EEOC charges of disability filed nationally. In 2011, that number rose to a record high of 25,742. In theory, association discrimination complaints have increased as well.

Categories of association discrimination

To establish a prima facie case of association discrimination under the ADA, a plaintiff must show the following: (1) the plaintiff was qualified for the job at the time of the adverse employment action; (2) the plaintiff was subjected to an adverse employment action; (3) the plaintiff was known by his employer at the time to have a relative or associate with a disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision. See Larimer v. International Business Machines Corp., 370 F.3d 698, 701 (7th Cir. 2004).

The court in Larimer explained that claims for association discrimination typically fall within three categories: expense, disability by association and distraction. The expense category includes situations where an employer terminates an employee whose relative had a disability that would cost the employer because he is covered by the employer’s health plan. The disability-by-association category encompasses situations where an employer terminates an employee whose relative has a disease that the employer fears the employee has or will contract, such as HIV. The distraction category includes situations where an employer terminates an employee who is somewhat inattentive at work because his relative has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction would require an accommodation.

Expense category

The 7th Circuit discussed disability by association for the first time in Larimer and affirmed summary judgment for the employer in an action brought by a former employee whose wife gave birth to premature twin daughters for claims brought under the ADA and ERISA. The twin daughters were hospitalized for approximately two months, and the employer’s health care plan paid almost $200,000 in hospital expenses. Shortly after the twin daughters went home from the hospital, the former employee was terminated for poor performance.

The court found that the former employee’s claim did not fit within any of three categories of disability association claims. The twin daughters’ premature births were neither communicable nor predictive of the former employee becoming disabled. There was no evidence that the former employee was absent or distracted at work. The only category in dispute was expense. However, the court found that the former employee’s claim did not fit within this category because there was no evidence that the employer had a financial stake in terminating an employee with expensive health benefit claims. The court suggested that the former employee would need to demonstrate that his family’s health benefits were linked to his managers’ budgets and/or that his managers’ compensation was tied to overall company performance or a profit-sharing plan.

The Larimer decision demonstrates that a claim for association discrimination requires more than a general allegation that an employer terminated an employee due to health-related expenses incurred by an associated individual. Rather, a plaintiff must produce specific evidence that the employer had a financial interest directly related to the health care costs resulting from the associated individual’s disability. A more recent 7th Circuit case illustrates the specific evidence that must be present to survive summary judgment.

In Dewitt v. Proctor Hospital, 517 F.3d 944, 949 (7th Cir. 2008), the court reversed summary judgment in favor of the employer for the reason that fact issues existed as to whether the partially self-insured employer was motivated to terminate an employee by association discrimination. The employee alleged that the employer violated the ADA when it terminated her in order to control the heath care costs related to her husband’s cancer treatment. The employer was self-insured and paid for its members’ medical expenses up to $250,000. Every quarter, the employer produced reports that listed employees’ medical claims that exceeded $25,000. These reports highlighted the employee’s husband’s expenses. On at least two occasions, the employer questioned the employee about her medical expenses and the treatment her husband was receiving. Subsequently, the employer informed its employees that it faced financial trouble that required “creative” cost-cutting measures. Shortly thereafter, the employee was terminated. The 7th Circuit found that the employee provided “direct evidence” of association discrimination. In other words, a reasonable juror could conclude that the employer “faced a financial struggle of indeterminate length, was concerned that Anthony — a multi-year cancer veteran — might linger on indefinitely,” and therefore the employee had a viable claim of association discrimination. Id.

Disability-by-association category

There are no reported 7th Circuit decisions dealing with the disability-by-association category. As explained above, disability by association includes situations where an employer terminates an employee whose relative has a disease that the employer fears the employee has or will have. For instance, the employee’s companion is infected with HIV, and the employer fears that the employee will become infected as well. See Larimer, 370 F.3d at 700. Another example is the case where an employee’s relative has a disease that has a genetic component, and the employee is likely to develop the disability. Id.

Distraction category

The legislative history of the association provision of the ADA distinguishes between two different situations in which the employer’s actions are permissible and impermissible under the distraction category. See H.R. Rep. No. 101-485, pt. 2 at 61-62 (1990). For instance, an applicant applies for a job and discloses to the prospective employer that his spouse has a disability. The prospective employer believes that the applicant is qualified for the position. However, the employer assumes that the applicant will have to miss work or leave work early in order to care for his spouse. The employer decides to not hire the individual for these reasons. The prospective employer’s actions in this situation violate the ADA. Id.

In contrast, assume that the prospective employer hires the applicant. If the employee violates a neutral employer policy concerning attendance or tardiness, the employee may be terminated even if the reason for the absence or tardiness is to care for the spouse with the disability. Id. The legislative history teaches us that there is no obligation for an employer to provide an accommodation to a nondisabled employee. Id. See also 29 C.F.R. § 1630.8 App. at 379 (2007) (an employee is not entitled to a modified work schedule to allow him to care for a disabled relative).

In one of the limited reported cases from Indiana, Cavender v. Sunbelt Rentals, Inc., 2007 WL 3119693, *12 (S.D. Ind.), the former employee sued his former employer for violations of the FMLA and ADA. He claimed that he was terminated for taking leave to care for his son. The former employee argued that his claim fit under the distraction category. The court granted the employer’s motion for summary judgment because there was no evidence that it terminated the employee because of his association with his son. The court determined that the former employee’s situation did not fit within the distraction category. He required time off in order to care for his son, but he was not “inattentive at work.” As explained above, the association provision of the ADA does not require an employer to accommodate a nondisabled employee. Accordingly, the district court found that the former employee did not set forth a prima facie case of association discrimination.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

ADVERTISEMENT