Summary:
Under the Association Provision of the ADA, employers may
not discriminate against an employee based on that employee's
association or relationship with a disabled individual.
The United States Equal Employment
Opportunity Commission (EEOC) recently issued a
question-and-answer article that addresses a little-known, yet
very significant, provision of the Americans with Disabilities
Act (ADA). The provision at issue is § 42 U.S.C. 12112 (b)(4),
known as the "association provision." The association provision
protects non-disabled family members, friends, and caregivers of
a disabled person from employment discrimination based on their
relationship or association with that disabled individual. The
EEOC states that the purpose of the provision is to prevent
adverse employment actions based on "unfounded stereotypes and
assumptions" about individuals who have relationships or
association with people who have disabilities. For example, the
EEOC states it is unlawful under the ADA for an employer to:
-
refuse to hire an individual who has a child
with a disability based on the assumption that the applicant
will be unreliable and miss work excessively in order to
care for the child;
-
fire an employee who works with people who
are HIV-positive or have AIDS based on the assumption that
the employee will contract the disease; or
-
deny an employee health care coverage that is
available to other employees because of the disability of
the employee's spouse or child.
"Relationship" or "Association"
Although a familial relationship is the
principle example of a "relationship" or "association," the ADA
does not require that the relationship be a familial one. In
fact, the key inquiry is not the nature of the relationship of
the employee to a disabled person; rather, the key inquiry is
whether the employer's adverse action against the employee was
motivated by the employee's relationship with a disabled
individual. The EEOC demonstrates this inquiry by offering an
example:
An employer learns that one of his employees
works part-time at a homeless shelter tutoring children.
Fearing that the employee may contract a disease such as AIDS
from working with these homeless children, the employer fires
the employee.
According to the EEOC, the employer has
violated the association provision of the ADA. This violation
occurs regardless of how remote or attenuated the employee's
relationship with disabled individuals at the shelter might be.
In the example, the violation occurred because the employer was
motivated to take the adverse employment action based on
concerns about the employee's association with disable
individuals.
Adverse Employment Actions
An employer may not take any of the
following actions based on an applicant or employee's
relationship or association with a person with a disability. An
employer may not:
-
terminate or refuse to hire an individual,
-
deny an employee a promotion or other
advancement opportunity,
-
deny an employee health care coverage that is
available to other employees,
-
deny an employee any other benefits or
privileges of employment that are available to other
employees, or
-
subject an employee to harassment or allow
other employees to harass an employee based on an
association with a disabled person.
Reasonable Accommodation
The ADA does not require an employer
to provide a reasonable accommodation to an employee, who is not
disabled, due to that person's association with a disabled
person. Under the ADA, only qualified applicants and employees
with disabilities are entitled to reasonable
accommodations. Therefore, an employer need not change its
policies and procedures to accommodate an employee associated
with a disabled person as long as the policies and procedures
are neutral and do not make disability-based distinctions.
Furthermore, the ADA does not require an
employer to provide health care coverage to employees. The ADA
only requires that if the employer does provide health care
coverage to other employees, the employer must provide employees
associated with disabled individuals the same access to such
coverage. Nevertheless, employers must avoid treating an
employee differently due to that employee's association with a
disabled person.
Examples
-
A restaurant owner discovers that the head
chef's spouse is HIV-positive. The owner fires the chef
because he fears that the chef will contract the disease or
potentially hurt the restaurant's business should customers
learn of the chef's relationship to an HIV-positive person.
Answer: The EEOC states that this is a
violation of the associate provision under the ADA because the
employer took an adverse employment action based on the
employee's relationship with a disabled individual.
-
An employer provides health insurance to
employees and their dependents. During a job interview, the
employer learns that the applicant has a child with a
disability. The employer believes that hiring the applicant
will greatly increase the employer's health insurance costs.
Answer: The EEOC states that if the employer
does not hire the applicant based on concerns of increased
insurance costs, the employer violates the association provision
of the ADA.
Answer: The employer would also violate the
association provision if he offered the applicant the job
without the insurance coverage benefit.
-
A company has an annual holiday party for the
children of its employees. The company president learns
that a newly hired employee has a child with Down Syndrome.
The president assumes that the employee's child will
frighten the other children and instructs the employee that
she can not bring her child to the party.
Answer: The EEOC states that the company has
violated the association provision of the ADA because the
company has denied the employee the benefits and privileges of
employment available to other employees due to that employee's
association with a disabled person.
-
During a job interview, an applicant
discloses to the employer that his spouse has a disability.
Although the employer believes the applicant is qualified
for the job, the employer, assuming without foundation that
the applicant will frequently have to miss work or leave
work early in order to care for his or her spouse, declines
to hire the individual.
Answer: The employer's refusal to hire the
applicant violates the association provision of the ADA.
-
In contrast, assume the employer hires the
applicant. If the employee violates a neutral
employment policy concerning attendance or tardiness, the
employer may discipline or terminate the employer even if
the reason for the absence or tardiness was to care for the
disabled spouse or child.
Answer: Under the ADA, the employer need not
provide any accommodation to a non-disabled employee. In
addition, the employee need not change its policies or
procedures to accommodate a non-disabled employee.
Implications for Employers
It is important to note that
applicants/employees have found it especially difficult to prove
a violation of the association provision under the ADA. In the
few cases that have addressed the provision, most
applicants/employees have failed even to survive summary
judgment because they have failed to carry their initial burden
of proof. Employers, however, should not take this difficulty
to mean that the risk of potential liability under the
association provision is any less real.
In fact, employers should consider the EEOC's
question-and-answer article a wake-up call to consider the
possible discriminatory effects of their employment decisions in
light of the association provision. Employers should review
their policies and procedures to assess the potential for
discrimination based on an employee's association with disabled
individuals. Employers should instruct managers and human
resource personnel about the importance of treating all
applicants and employees equally regardless of their
associations or relationships. Employers should also ensure
that improper motivations such as increases to health care costs
or stereotypes about various disabilities have no place in their
decision making process.
If you should have any questions concerning
the ADA and its effects on your policies or procedures, please
contact us.
