Originally published by Thomas J. Crane.
One often overlooked aspect of Americans with Disabilities Act is that this statute also protects persons who have an association or relationship with a person who has a disability. See 42 U.S.C. §12112(b)(4). 20 C.F.R. §1630.8 defines the association as relationships based on family, business, social or other sorts of relationships. The statute and regulation appear to recognize that persons with disabilities often have informal support groups. As one client with blindness once explained to me, he left his home for a job in a distant state. In that distant state, his colleagues at work became in effect his support network. He could not really survive without an informal support group.
If a person suffers discrimination because he or she assists someone with a disability, how does that person show discrimination? There is no specific test for associational discrimination under the ADA. So, rightly or wrongly, the courts have adopted a test based on certain situations. The seminal case is Larimer v. IBM Corp., 370 F.3d 698 (7th Cir. 2004), cert. den. 543 U.S. 984 (2004). Judge Posner is the author. The court found three types of situations that fall within the protections of Sec. 12112(b)(4):
- Expense – such as when the spouse of an employee will cause additional expense to the employer. This might happen when a spouse will cause health insurance premiums to rise, so the employee is fired.
- Disability by association – the court focused on possible genetic pre-dispostion to certain impairments, or an employee with contagious impairment like HIV
- Distraction – such as when an employee is distracted at work due to the impairment of a family member
The problem with this list is that courts inevitably see the list as exclusive. The Larimer court in no way suggested this list is a final list. In fact, the court set forth this list simply to help explain why Mr. Larimer would not be protected by the ADA. Mr. Larimer, said the court, lacked evidence showing the employer was concerned about the health care costs of his daughter, or that her condition was somehow communicable to others. Therefore, he was not entitled to coverage.
Judge Posner pointed out a “quirk” in the statute. By the literal wording of the statute, a person who alleges s/he was fired because s/he was associated with a person with a disability must show that s/he was a “qualified individual.” That is, the wording requires the family member to have a disability, just as the person s/he is assisting must also have a disability. That would make no sense. The purpose of the provision is to protect persons providing assistance, not those who have impairments themselves. So, Judge Posner interpreted this provision to mean the assisting person must be qualified for the position from which s/he has been fired. See the Larimer decision here.
The prima face elements for an associational discrimination claim would include that the person: 1) was qualified for the job, 2) was subjected to adverse personnel action, 3) was known by the employer at the time to have a relative or associate with a disability, and 4) suffered an adverse action in circumstances that suggest a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision. See, Graziadio v. Culinary Institute of America, 817 F.3d 415, 32 A.D. Cases 1117 (2d Cir. 2016); Hilburn v. Murata Electronics N. America, Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999).
The caselaw is not perfect. But, the statute recognizes a fact of life in the world of persons with disabilities: many persons involved in their lives are not relatives. They often have an informal network of supporters who make their working lives possible.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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