A new and increasingly utilized protection under the Americans With Disabilities Act (ADA) has been defined as “Associational Discrimination.” The Equal Employment Opportunity Commission explains it this way:
“The association provision of the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association.”
Employers need to be cautious when deciding not to hire an applicant or terminating employees. They must ensure that the decision is not associated with knowledge of an employee’s family, friend or partner with a disability that they perceive would require the employee to miss work, for example.
An employee who is eligible for the Family and Medical Leave Act (FMLA) is granted legal rights to take leave to care for a family member with medical certification. However that requirement only applies to employees who have been with the company for at least one year (cumulatively) and have worked 1,250 hours in the previous 12 months. Under the ADA, any employee, no matter the length of service, is eligible for ADA protections. Even an applicant for an open position has these protections.
Under the ADA, an employer who makes an adverse employment action could be charged with “associational discrimination.” This could include failing to hire an applicant or terminating a current employee due to an assumption that the employee will miss time from work to care for a family member that has a disability.
An employee must be able to perform essential functions of a job. However, recent court cases have also determined that an employee that does not fall under certain attendance or tardiness policies (an exempt employee, for example) cannot be held responsible if that employee regularly starts the work day late due to caring for a family member with a disability. Disciplining or terminating an employee who is not subject to attendance or tardiness policies could result in an associational discrimination charge.
It is important to structure your company handbook or employment policies to limit your exposure to associational discrimination claims and to train your hiring managers to avoid hiring decisions that leave the company vulnerable. Additionally, it is imperative to review all factors being used when making decisions to terminate employees. Consider the following points when taking an adverse employment action:
- Was the employee qualified for the job at the time of the adverse employment action?
- Was (s)he subjected to an adverse employment action?
- Did the employer know at the time that (s)he had a relative or associate with a disability?
- Did the adverse employment action occur under circumstances raising a reasonable inference that the relative’s or associate’s disability was a determining factor in the employer’s decision?
As always, contact your BCN Services Partnership Manager to arrange manager training, handbook or policy development and/or guidance in questionable employment situations.
Jeff Walsh, Partnership Manager