One seldom seen cause of action under the Americans with Disabilities Act (ADA) is the “association discrimination” claim, in which the plaintiff claims he was victim of an adverse decision based on his relationship with someone who has a disability.
How rare is an association discrimination claim? In 20 years of ADA litigation, the 6th U.S. Circuit Court of Appeals has never published a decision in an association discrimination case, until now.
In Stansberry v. Air Wisconsin Airlines Corp., the court laid out the standards for such a case in the circuit:
The legislative history accompanying this section, H.R. Rep. No. 101-485, pt. 2, at 61-62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 343-44, explains the type of conduct that is prohibited.
“[A]ssume, for example that an applicant applies for a job and discloses to the employer that his or her spouse has a disability. The employer believes the applicant is qualified for the job. The employer, however, assuming without foundation that the applicant will have to miss work or frequently leave work early or both, in order to care for his or her spouse, declines to hire the individual for such reasons. Such a refusal is prohibited by this subparagraph. In contrast, assume that the employer hires the applicant. If he or she violates a neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason for the absence or tardiness is to care for the spouse. The employer need not provide any accommodation to the nondisabled employee. The individuals covered under this section are any individuals who are discriminated against because of their known association with an individual with a disability.”
Importantly, employers are not required to provide reasonable accommodations to nondisabled workers under this section of the Act. See 29 C.F.R. § 1630.8 App. at 379 (2007); Larimer v. Int’l Bus. Machs. Corp., 370 F.3d 698, 700 (7th Cir. 2004); Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1084 (10th Cir. 1997).
The court described three three types of association discrimination cases: “expense” cases, “disability by association” and “distraction.”
The “expense” 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.
Finally, the court found that a claim without direct evidence of the alleged discrimination, the plaintiff can make a prima facie case by showing:
(1) the employee was qualified for the position; (2) the employee was subject to an adverse employment action; (3) the employee was known to be associated with a disabled individual; and (4) the adverse employment action occurred under circumstances that raise a reasonable inference that the disability of the relative was a determining factor in the decision.
In the Stansberry case, the court found the plaintiff couldn’t show a prima facie case because the circumstances didn’t raise a reasonable inference that his wife’s disability was a determining factor in the decision.