By Theresa R. 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.
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.
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.
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.