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DTCI: Disabilities by association

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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.
 

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The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. 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Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. 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This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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