Adverse Employment Actions Based on Associational Disability Discrimination.

• Author: Koepke, Alicia H.
• Position: Labor and Employment Law

We have all heard the sayings about our choices, or lack thereof, of the people in our lives: "You can pick your friends, but you can't pick your relatives"; "You'll be known by the company you keep"; and "Keep your friends close but your enemies closer." Yet in this world where many people's online lives reveal more to others than ever before, including current and potential employers, applicants, employees, and employers should all be aware of how such associations might impact the employer-employee relationship. In few areas is this more true than when association with someone who is disabled can influence decisions in the workplace. This article explains the protections and limitations of the Americans with Disabilities Act (ADA) associational disability provision, and analyzes the differences between the ADA as compared to the Florida Civil Rights Act (FCRA) with respect to disability discrimination.

Most claims under Title I of the ADA (1) are asserted by applicants or employees alleging that employers discriminated against them on the basis of their disabilities. (2) But in addition to those claims, under the ADA, qualified applicants or employees can assert claims against employers for discriminating against them because of the known disability of an individual associated with or related to the applicants or employees. (3) The provision of the ADA that authorizes such claims is commonly referred to as the "association provision." Although the association provision offers protection against discrimination to qualified applicants and employees regardless of whether the applicants or employees have a disability, the protections afforded under this provision are not as broad as the protections afforded to disabled applicants and employees. Moreover, although the ADA expressly prohibits associational disability discrimination through its association provision, the FCRA (4) does not contain a comparable association provision. In fact, its language appears to preclude such a claim.

The ADA's Associational Disability Discrimination Prohibition

The ADA is a federal law that makes it unlawful for covered employers (5) to "discriminate against a qualified individual on the basis of disability." (6) The quoted phrase is not limited to discrimination based on an applicant's or employee's disability. In fact, the associational provision of the ADA expressly states that "discrimination] against a qualified individual on the basis of disability" encompasses "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." (7) In its regulations, the

Equal Employment Opportunity Commission (EEOC) interprets the association provision as not only prohibiting employers from "exclud[ing] or deny[ing] equal jobs or benefits" under those circumstances, but also from "otherwise discriminat[ing]" against qualified applicants or employees because of their association with an individual the employer knows to have a disability. (8) The EEOC's regulation also expands the "relationship or association" language of the ADA's association provision by stating that the relationships and associations protected by the ADA can be "family, business, social, or other[wise]." (9) Although there are multiple types of relationships that may be protected by the association provision, the courts have found that casual associations with disabled individuals are not protected. (10)

Because direct evidence of discrimination is rare, (11) most plaintiffs attempt to establish their associational disability discrimination cases through circumstantial evidence. In the specific context of associational disability discrimination cases, most federal circuit courts, including the 11th Circuit, use a modified version of the McDonnell Douglas test first adapted by the 10th Circuit in Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1085 (10th Cir. 1997). Under that test, in order to establish a prima facie case of associational disability discrimination, a plaintiff must show 1) he or she was subjected to an adverse employment action; 2) he or she was qualified for the position at the time of the adverse employment action; 3) the employer knew that a relative or other associate of plaintiff was disabled; and 4) the adverse employment action occurred under circumstances that raise a reasonable inference that the relative's or associate's disability was a determining factor in the employer's decision. (12)

If a plaintiff establishes a prima facie case, the burden shifts to the employer to proffer a legitimate, nondiscriminatory reason for its adverse action. (13) The employer's burden is only one of production; it does not need to persuade the court that it was actually motivated by the stated reason. (14) If the employer proffers a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff to show that the stated reason is not the true reason for the adverse action, but was a pretext for intentional discrimination. (15) At that point, the trier of fact may consider evidence used to establish the prima facie case and inferences that may be drawn from such evidence in determining whether the employer's explanation is a pretext for discrimination. (16) Pretext can be shown in various ways, including disparate treatment of similarly situated employees, procedural irregularities, and other weaknesses, inconsistencies, or implausibilities in the employer's stated nondiscriminatory reason. (17) Nevertheless, the plaintiff must ultimately prove that the employer intentionally discriminated. (18) Even if an employer's decision was unreasonable or ill-considered, provided the employer honestly believed in its nondiscriminatory reason for taking the adverse action, there is no pretext. (19)

In addition to defending based on a legitimate, nondiscriminatory reason for an adverse action, in Den Hartog, the 10th Circuit held that employers sued for associational disability discrimination can use the "direct threat" affirmative defense that is available in other contexts under the ADA, and opined that other affirmative defenses available to employers under the nonassociation provisions of the ADA should likewise be available to employers defending against association claims. (20)

Types of Associational Disability Discrimination Claims

Associational disability discrimination claims generally fall into three categories. (21) The first category is known as "expense," which is when an employee's disabled family member is covered under an employer's health plan and an employer is alleged to have taken an adverse action against the employee to avoid the increased cost to the employer. (22) Self-insured employers are at risk of being sued for expense claims because they can bear all, or part, of the health-insurance-covered expenses incurred by an employee's family member. For example, in Trujillo v. PacifiCorp., 524 F.3d 1149, 1158 (10th Cir. 2008), the 10th Circuit reversed the district court's grant of summary judgment in...