Association Discrimination is hitting the front burner of employment law, says attorney Joseph L. Beachboard. This new type of discrimination comes partly from laws, partly from court decisions, and partly from EEOC—and every employer needs to add it to the list of discrimination types they train about.
Beachboard, who is a shareholder in the Los Angeles office of law firm Ogletree Deakins, notes that in his firm, there are at least a dozen of these association claims active right now. Beachboard’s tips came at the SHRM Annual Conference and Exposition held recently in Las Vegas.
Beachboard says that there are three main sources for association discrimination cases:
- Americans with Disabilities Act (ADA)—These rights are imbedded in the law
- Civil Rights Laws—These rights are not in the law, but are given by the courts
- Family Responsibility Discrimination (FRD)—These rights are given by the EEOC
Americans with Disabilities Act (ADA)
The ADA prohibits an employer 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.”
How close does the relationship have to be? According to the EEOC, says Beachboard, it does not have to be a blood or family relationship. If the basis of an employment decision is the relationship, there may be a violation.
Since almost any adverse employment decision may form the basis for a case, you need a good answer to the question, “why did you take the adverse action?” says Beachboard.
Beachboard also notes that the recent amendments to the ADA did not affect this association provision.
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Key Elements
The key elements of an ADA association discrimination case are likely to be:
- Plaintiff was qualified for the position
- Plaintiff was subjected to an adverse employment action
- Plaintiff was known by his or her employer to have a relative of associate with a disability, and
- The adverse action occurred under circumstances that raise a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decisions. (This is the factor where most of the debate is taking place, Beachboard says.)
The “reasonable inference” generally falls into one of three categories, says Beachboard:
Expense. Example: During the hiring process, the manager finds out that the applicant’s wife suffers from a disability. The company doesn’t hire the individual because of a fear that healthcare expenses will go up.
Association. Example: A restaurant owner finds out that his chef is dating someone with HIV. Fearful that the chef will contract the disease and pass it on to customers, the owner fires the chef.
Distraction. Example: An applicant reveals that she is a single mother with a daughter with a disability. The manager doesn’t hire her, fearing that she will be too busy attending to her daughter to get the job done.
An Illustrative Case
In Strate v. Midwest Bankcentre, Inc., a female bank employee, who had risen through the ranks to become VP of operations, sued the bank, claiming that her daughter’s Down Syndrome was a motivating factor in a decision to terminate her.
Unfortunately for the company, she had a “stellar” employment history and the court held that she had raised a genuine issue of fact as to whether her employer’s reasons for eliminating her position were pre-textual.
Beachboard notes that few employment cases actually go to trial, and that makes the question of whether a case survives summary judgment very important.
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Civil Rights Laws
Federal civil rights laws (including title VII) have been interpreted as prohibiting discrimination against an employee based on his or her relationship with an individual in a protected category.
Most of the claims involve employees who are involved in an interracial marriage, Beachboard says.
In one case, Holcomb v. Iona College, a former assistant coach claimed that the school had discharged him because he was married to an African-American woman.
The court held that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”
Employers may also be held liable if workers are subjected to offensive comments or other harassment based on their association with a member of a protected class.
Note, says Beachboard, this is not part of the original law, it is “law” that is made by the courts.
In tomorrow’s Advisor, the EEOC position, Beachboard’s tips for employers, and an introduction to a unique checklist-based audit system.