Discrimination Under The ADA: Understanding the Little-Known "Association" Provision

Most employers are familiar with the Americans with Disabilities Act (ADA). The ADA prohibits discrimination by employers with 15 or more employees against a qualified applicant or an employee who is disabled, as defined by the law. However, a little-known but significant provision of the ADA has been the subject of recent scrutiny by the Equal Employment Opportunity Commission (EEOC).

The provision in question is known as the "association" provision of the ADA. Under this provision, an employer is prohibited 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.'' The purpose of this provision is to prevent employers from taking adverse employment action, such as hiring, firing, and other terms, conditions, and privileges of employment based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.

Interestingly, the "association" provision does NOT require a familial relationship between the employee and the disabled person. The statute only requires the employee have a known relationship or association with a person with a known disability.

The EEOC's recently published guide, "Questions and Answers about the Association Provision of the Americans with Disabilities Act¹," explains the requirements of the ADA's association provision and provides examples of how it applies to employment situations. According to the EEOC, the following actions would be considered discriminatory:

firing or refusing to hire someone based on concerns that the individual will acquire a condition from a family member or other individual with whom he has a relationship;
refusing to provide health insurance for an employee's family member with a disability when the employer generally provides health insurance for employee dependents;
harassing someone based on the individual's association with a person with a disability;
providing lesser benefits to someone who has a relationship or association with an individual with a disability than it provides to all other employees; and
firing, refusing to hire, or denying any benefit or privilege of employment to someone because of concern that the employer's image will be negatively affected by an applicant's or employee's association with individuals with disabilities - for example, discriminating against an employee who provides volunteer services for people with HIV/AIDS or psychiatric disabilities is prohibited.

It is important for employers to know that employers are NOT required to provide reasonable accommodations, as defined under the ADA, for an employee who associates with a disabled person. While this provision does not require "reasonable accommodation," other laws, such as the Family Medical Leave Act, may provide for the accommodation of employees with family members who suffer from a disability. It is also important to note that employers are not required to provide health insurance benefits to employees who have dependents with disabilities beyond that which is provided to other employees.

The association provision has been the subject of little litigation, however the cases that have been brought have largely been guided by the holding in Hartog v. Wasatch Academy. In that case, the court concluded that to succeed in an association case the employee/plaintiff must first:

Show he was qualified at the time he suffered an adverse action,
Show he was subjected to adverse employment action;
The plaintiff was known by his employer at the time to have a relative or associate with a disability; and
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.

Once the plaintiff establishes these four elements, then the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer tenders a legitimate reason for the employment action, the burden shifts back to the plaintiff to show that the employer's stated reason was not the cause for the firing.

Directors and Officers must have a clear understanding of their wide-ranging duties, including the duty of care and the duty of loyalty, so that they can manage effectively and avoid the liability they may incur for themselves and their associations in the conduct of these duties.

While a relatively small number of lawsuits have so far been filed under this provision, employers should expect the new EEOC guide to assist attorneys representing employees in ADA cases in filing these types of claims.

One recent case indicates how this type of action can succeed. In April 2005, in Strate v. Midwest Bankcentre, the 8th Circuit Court of Appeal held that a woman with a long and stellar employment history with the defendant/employer, who gave birth to a child with Down Syndrome, was fired upon her return from maternity leave. The plaintiff presented enough facts to shift the burden to the employer to show that the "elimination of the employee's position," may have been a pretext for firing her in violation of the "association" provision of the ADA.

While the "association" provision is not new, it has now become the focus of scrutiny by the EEOC. Therefore, employers need to recognize that taking action against an employee, which coincides with some protected activity such as in the Strate case, should be heavily considered. Employers should make sure that negative employment action is based on a valid, non-discriminatory reason, supported by evidence.

¹ Published October 2005 and available at http://www.eeoc.gov/facts/association_ada.html

Provided by: HRTutor.com and The Human Equation Email this article Discrimination Under The ADA: Understanding the Little-Known "Association" Provision By: Laurie Meyers, Esq.
Most employers are familiar with the Americans with Disabilities Act (ADA). The ADA prohibits discrimination by employers with 15 or more employees against a qualified applicant or an employee who is disabled, as defined by the law. However, a little-known but significant provision of the ADA has been the subject of recent scrutiny by the Equal Employment Opportunity Commission (EEOC). The provision in question is known as the "association" provision of the ADA. Under this provision, an employer is prohibited 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.'' The purpose of this provision is to prevent employers from taking adverse employment action, such as hiring, firing, and other terms, conditions, and privileges of employment based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities. Interestingly, the "association" provision does NOT require a familial relationship between the employee and the disabled person. The statute only requires the employee have a known relationship or association with a person with a known disability. The EEOC's recently published guide, "Questions and Answers about the Association Provision of the Americans with Disabilities Act¹," explains the requirements of the ADA's association provision and provides examples of how it applies to employment situations. According to the EEOC, the following actions would be considered discriminatory: firing or refusing to hire someone based on concerns that the individual will acquire a condition from a family member or other individual with whom he has a relationship; refusing to provide health insurance for an employee's family member with a disability when the employer generally provides health insurance for employee dependents; harassing someone based on the individual's association with a person with a disability; providing lesser benefits to someone who has a relationship or association with an individual with a disability than it provides to all other employees; and firing, refusing to hire, or denying any benefit or privilege of employment to someone because of concern that the employer's image will be negatively affected by an applicant's or employee's association with individuals with disabilities - for example, discriminating against an employee who provides volunteer services for people with HIV/AIDS or psychiatric disabilities is prohibited. It is important for employers to know that employers are NOT required to provide reasonable accommodations, as defined under the ADA, for an employee who associates with a disabled person. While this provision does not require "reasonable accommodation," other laws, such as the Family Medical Leave Act, may provide for the accommodation of employees with family members who suffer from a disability. It is also important to note that employers are not required to provide health insurance benefits to employees who have dependents with disabilities beyond that which is provided to other employees. The association provision has been the subject of little litigation, however the cases that have been brought have largely been guided by the holding in Hartog v. Wasatch Academy. In that case, the court concluded that to succeed in an association case the employee/plaintiff must first: Show he was qualified at the time he suffered an adverse action, Show he was subjected to adverse employment action; The plaintiff was known by his employer at the time to have a relative or associate with a disability; and 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. Once the plaintiff establishes these four elements, then the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer tenders a legitimate reason for the employment action, the burden shifts back to the plaintiff to show that the employer's stated reason was not the cause for the firing. Directors and Officers must have a clear understanding of their wide-ranging duties, including the duty of care and the duty of loyalty, so that they can manage effectively and avoid the liability they may incur for themselves and their associations in the conduct of these duties. While a relatively small number of lawsuits have so far been filed under this provision, employers should expect the new EEOC guide to assist attorneys representing employees in ADA cases in filing these types of claims. One recent case indicates how this type of action can succeed. In April 2005, in Strate v. Midwest Bankcentre, the 8th Circuit Court of Appeal held that a woman with a long and stellar employment history with the defendant/employer, who gave birth to a child with Down Syndrome, was fired upon her return from maternity leave. The plaintiff presented enough facts to shift the burden to the employer to show that the "elimination of the employee's position," may have been a pretext for firing her in violation of the "association" provision of the ADA. While the "association" provision is not new, it has now become the focus of scrutiny by the EEOC. Therefore, employers need to recognize that taking action against an employee, which coincides with some protected activity such as in the Strate case, should be heavily considered. Employers should make sure that negative employment action is based on a valid, non-discriminatory reason, supported by evidence. ¹ Published October 2005 and available at http://www.eeoc.gov/facts/association_ada.html
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