The Americans with Disabilities Act (ADA) prohibits associational discrimination. In other words, an employer cannot discriminate against an applicant or employee who has a relationship or association with an individual with a known disability. 42 U.S.C. § 12112(b)(4). The EEOC explains that the ADA prohibits conduct such as:
- An employer is interviewing applicants for a computer programmer position. The employer determines that one of the applicants, Arnold, is the best qualified, but is reluctant to offer him the position because Arnold disclosed during the interview that he has a child with a disability. The employer violates the ADA if it refuses to hire Arnold based on its belief that his need to care for his child will have a negative impact on his work attendance or performance.
This example, along with the EEOC’s guidance on the association provision of the ADA can be found here.
These claims are relatively rare. Earlier this month, the United States Court of Appeals for the Sixth Circuit, in Stansberry v. Air Wisconsin Airlines Corp., issued its first published opinion on such a claim.
Relying on the Seventh Circuit’s decision in Larimer v. Int’l Bus. Machs. Corp., 370 F.3d 698, 700 (7th Cir. 2004), the Sixth Circuit identified three theories which “association discrimination” plaintiffs generally use: (1) “expense”; (2) “disability by association”; and (3) “distraction.” As the Court explained:
- “[E]xpense” theory covers situations where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer’s health plan, which is costly to the employer. The “disability by association” theory encompasses two related situations. Either the employer fears that the employee may contract the disability of the person he or she is associated with (for example the employee’s partner is infected with HIV and the employer fears the employee may become infected), or the employee is genetically predisposed to develop a disability that his or her relatives have. The “distraction” theory is based on the employee’s being somewhat inattentive at work because of the disability of someone with whom he or she is associated.
The Court assumed that Stansberry’s wife had condition that qualified as a disability. Air Wisconsin was aware of her condition. Stansberry relied on the “distraction” theory. The Court found that Stansberry could not make out a prima facie claim of discrimination because the evidence showed that Stansberry was discharged because of unsatisfactory performance, not because of any unfounded fears that his wife’s illness might cause him to be inattentive or distracted in the future. The Court noted that while his wife’s illness may have precipitated his poor performance, Stansberry, who did not have a disability, was not was not entitled to an accommodation under the ADA.