Chapter § 3-8 § 1630.8. Relationship or Association With an Individual With a Disability

• Jurisdiction: United States

3-8 § 1630.8. Relationship or Association With an Individual With a Disability

It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.

In order to assert such a claim, a plaintiff must allege that the person or persons with whom she is associated have a qualifying disability. The failure to do so results In dismissal.

• Ruckebeil v. Cancer Treatment Ctrs. of Am., Inc., No. 15 C 08259, 2016 U.S. Dist. LEXIS 29624 (N.D. Ill. Mar. 8, 2016) (plaintiff only alleges that her children had serious health conditions but nowhere in the complaint labels her children's health problems as 'disabilities"; court notes that disability under ADA is distinct concept from serious health condition under FMLA).

3-8:1 Commentary

3-8:1.1 Three Theories That Fit Within "Association Discrimination"

There are three theories that fit within "association discrimination." There is the expense theory. This covers situations where the employee suffers an adverse employment action because of an association with a disabled person covered under the employer's health plan that is costly to the employer. The second is disability by association, which is divided into two parts (a) action taken by an employer who believes that the employee will contract a disease or ailment from a person he or she is associated with, or (b) the employee has a genetic predisposition to develop a disability. Third, there is the "distraction" theory, which is based on the idea that the employee is "distracted" at work because of his association with a person with a disability.

In Grimes v. Wal-Mart Stores Texas, L.L.C., 505 F. App'x 376 (5th Cir. 2013), the Fifth Circuit in footnote 1 acknowledged that it had yet to decide whether here is a discrimination claim based on associational discrimination. But it recognized that several courts in the circuit had done so.

• Spinks v. Trugreen Landcare, 322 F. Supp. 2d 784, 786 (S.D. Tex. 2004).
• Moresi v. AMR Corp., No. CA 3:98-CV-1518, 1999 WL 680210 (N.D. Tex. Aug. 31, 1999).
• Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482 (6th Cir. 2011) (setting out the three theories; affirming summary judgment for employer where employee proceeded on "distracted" theory; court rejects employee's argument that he was terminated because of his wife's disability because of the temporal proximity between her condition worsening and his termination, with court reasoning that employer knew of his wife's disability for a number of years thus undercutting any inference that his termination was based on unfounded fears that the disability would distract him at work; finally, while an employee may be distracted, that is not an excuse for poor performance).

The Air Wisconsin case is considered the lodestone and is followed by other courts.

• Gaglioti v. Levin Group, Inc., 508 F. App'x 476 (6th Cir. 2012) (affirming summary judgment for defendant, noting that any inference of discrimination is undercut if defendant knew of disability of spouse for a long time but plaintiff suffered no adverse employment action until the action which he is now complaining about; further, court rejects conclusory argument that termination of plaintiff occurred because his wife was high risk beneficiary for company's health insurance; assuming this is true there still must be evidence that cost was "on the mind of the decision maker at the time of [the adverse employment action;]" finally, employer offered evidence from company's insurance broker that she never discussed the wife's illness with anyone at the company).

An interesting case on the first prong of Air Wisconsin deals with ERISA presumption.

• Gonzalez v. Wells Fargo Bank, N.A., No. 12-80937, 2013 WL 5435789 (S.D. Fla. Sept. 27, 2013) (expense avoidance theory preempted by ERISA; but court denies summary judgment finding a fact issue on "distraction" prong because

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