Using the ADA for Parents
of Children with Disabilities.
Copyright 2006, 2007, 2008 by Frank E. Stepnowski
updated April 25, 2008.
While most people know that the Americans with Disabilites Act (ADA)
protects those with disabilities from discrimination in employment,
recent court cases have extended the protection to parents of children
with disabilities. For example, if a parent of a child with
cerebral palsy has to leave early to care for the child, the employer
may not retailiate against the parent. The protections of this
law are limited, but can be worth investigating.
In a little-used aspect of the ADA, the law prohibits employers
from discrimination against employees who have an "association" with
someone with a disability. 42 U.S.C. sec. 12112(b)(4). This
law would prohibit a discrimination against “a qualified individual
because of the known disability of an individual with whom the
qualified individual is known to have a relationship or
association.” Thus, a parent has a relationship with a child with
a disability.
Get 'er done
In two recent cases from the Seventh Circuit Court of Appeals in
Chicago, the court noted that an employer cannot fire, demote, or
harass a parent because the employer thinks that parent
may be
"somewhat inattentive" during work hours. Employees who are
distracted by family needs, but still manage to get the job done
without accommodations, are protected.
Larimer v. IBM, 370 F.3d 698 (7th
Cir. 2004).
Avoiding the evil "Catbert"
In
Washington v. Illinois Department
of Revenue, 420 F. 3d 658, 662 (7th Cir. 2005), the Seventh
Circuit ruled that an employer cannot
make a work change that exploits a worker's special
vulnerability. In Washington's case, she needed
to get home
early to care for her disabled child. The employer could not
spitefully change her work schedule when it knew she had to leave
early. The court even cited the evil human resources character
Catbert from the cartoon strip
Dilbert,
who delights in pouncing on the workers' vulnerabilities! On June
22, 2006, the United States endorsed the approach of the Seventh
Circuit when it held the scope of the anti-retaliation provision
extends beyond workplace-related or employment-related retaliatory acts
and harm.
Burlington Northern
Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
cite.
Similarly, on February 27, 2008, the Seventh Circuit
held that a an employee could raise a claim of "association
discrimination" when the employer fired her because it considered her
husband's medical bills, paid by the employer's health plan, to be too
costly. DeWitt
v. Proctor Hospital, 517 F.3d 944 (7th Cir. 2008). The
concurring opinion suggested, however, that the employer's action was
really benefits discrimination, prohibited under section 510 of ERISA,
rather than association discrimination against someone with a
disability, since the employer was reacting to anyone who had costly
medical bills, whether disabled or not. More on section 510,
below.
No right to
accommodations:
In
Overley v. Covenant Transportation
(6th Cir. April 27, 2006), another
court noted the protections are restricted. Unlike a claim
brought by a disabled person, an employer is not
required to reasonably accommodate an employee based on her association
with a disabled person. 29 C.F.R. Pt. 1630, App. (§ 1630.8) [
footnote];
Den
Hartog v. Wasatch Academy, 129 F.3d 1076, 1084-85 (10th Cir.
1997). [See Senate Report at 30; House Labor Report at 61-62;
House Judiciary Report at 38-39.]
Thus a parent cannot claim that an employer discriminated against her
by
not granting her sufficient time off or allowing her to modify her
schedule so that she could care for her daughter. An employee who
cannot meet the attendance requirements of her job is not protected by
§ 12112(b)(4). See
Tyndall v.
Nationl Education Centers., Inc. of Cal., 31
F.3d 209, 213 (4th Cir. 1994) (reaching this conclusion by analyzing
the statute’s legislative history and governing regulations). Courts
have surmised that an employee would be protected under the statute if
the employee was only distracted at work, but did not require a
reasonable accommodation,
Larimer,
370 F.3d at 700, or if the
employer’s decision was based solely on an unsubstantiated belief that
the employee would have to miss work because of the association,
Tyndall, 31 F.3d
at 213.
The Standard:
Under a test developed by the Tenth Circuit, a plaintiff can make out a
claim under § 12112(b)(4) by showing that:
- she was qualified
for the position;
- she was subject to an adverse employment action;
- she was known to have a relative with a disability;
and
- the
adverse employment action occurred under a circumstance that raises a
reasonable inference that the disability of the relative was a
determining factor in the decision.
See
Larimer, 370 F.3d at 701.
Different from FMLA
The Federal Medical Leave Act provides that covered employers must
grant an eligible employee up to a total of 12 workweeks of unpaid
leave during any 12-month period for one or more of the following
reasons:
- for the birth and care of the newborn child of the
employee;
- for placement with the employee of a son or daughter
for adoption or foster care;
- to care for an immediate family member (spouse,
child, or parent) with a serious health condition; or
- to take medical leave when the employee is unable to
work because of a serious health condition.
Covered employers are those with at least 50 employees.
More on Section 510 Benefits Discrimination
Section 510 of the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. section 1140, prohibits an employer to discharge,
fine, suspend, expel, discipline,
or discriminate against a participant or beneficiary for exercising any
right to the provisions of an employee
benefit plan, or interfering with the attainment of any
right to which such participant may become entitled under the
plan. An employee cannot be fired or demoted because he, she or a
dependent needs more medical care payable by the employer's plan.
see
deWitt, above. A
new decision by the Eighth Circuit,
FitzGerald
v. Action, Inc., (.pdf) no. 07-2199 (8th Cir. 2008), ruled that the
employer may have fired of the employee using an unlwful pretext to
avoid paying for his shoulder treatment, based on these events: (1)
Action's inconsistent explanations for the termination; (2) Action's
failure to follow company policy; (3) Action's more lenient treatment
of another employee; and (4) the temporal proximity between notifying
Action of his surgery and his termination.
Note also that the Department of Labor has issued Regulations
prohibiting discrimination in health plans:
(b) Prohibited discrimination in rules for eligibility--(1) In
general--(i) A group health plan, and a health insurance issuer offering
health insurance coverage in connection with a group health plan, may
not establish any rule for eligibility (including continued eligibility)
of any individual to enroll for benefits under the terms of the plan or
group health insurance coverage that discriminates based on any health
factor that relates to that individual or a dependent of that
individual.
29 CFR sec.
2590.702. These regulations are complex and nuanced, and allow
participants to join a plan while not necessarily providing the
benefits the participants need.
Federal Guidance:
The Federal EEOC has provided some examples of the types of employer
conduct the "association" provision prohibits:
- An employer may not terminate
or refuse to hire someone due to that person's known association
with an individual with a disability.
Example : 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.
- An employer may not deny an employee who has an
association with a person with a disability a promotion or other opportunities for advancement due to
that association.
Example :
Tiffany, a part-time salesperson
at a large appliance store, applies for a full-time position. The
manager
hiring for the position rejects Tiffany's application because, having
heard
that Tiffany's mother and sister had breast cancer, he concludes that
Tiffany
is likely to acquire the same condition and be unable to reliably work
the hours
required of a full-time salesperson. This is a violation of the
association
provision of the ADA.
- An employer may not make any other adverse employment decision
about an applicant or employee due to that person's association with a
person with a disability.
Example : The
president of a small company
learns that his administrative assistant, Sandra, has a son with an
intellectual disability. The president is uncomfortable around
people with
this type of disability and decides to transfer Sandra to a position in
which
he will have less contact with her to avoid any discussions about, or
interactions with, Sandra's son. He transfers her to a
vacant entry-level
position in the mailroom which pays less than Sandra's present
position, but
will allow him to avoid interacting with her. This is a violation
of the ADA's association provision.
- An employer may not
deny an employee health care coverage available to others
because of the disability of someone with whom the employee has a
relationship or association.
Example : An
employer who provides health
insurance to the dependents of its employees learns that Jaime, an
applicant
for a management position, has a spouse with a disability. The
employer
determines that providing insurance to Jaime's spouse will lead to
increased
health insurance costs. The employer violates the ADA if it
decides not to
hire Jaime based on the increased health insurance costs that will be
caused by
his wife's disability.
Example : In
the previous example, it would
also violate the ADA for the employer to offer Jaime the position
without the
benefit of health insurance for his dependents. The employer may
not reduce
the level of health insurance benefits it offers Jaime because his wife
has a
disability; nor may it subject Jaime to different terms or conditions
of
insurance.
- An employer may not deny an employee any other benefits or privileges of employment
that are available to others because of the disability of someone with
whom the employee has a relationship or association.
Example :
A company has an annual holiday
party for the children of its employees. The company president
learns that one
of its newly hired employees, Ruth, has a daughter with Down
Syndrome. Worried
that Ruth's daughter will frighten the other children or make people
uncomfortable, he tells Ruth that she may not bring her daughter to the
party.
Ruth has been denied the benefits and privileges of employment
available to
other employees due to her association with a person with a
disability.
- An employer may not subject someone to harassment based on that person's
association with a person with a disability. An employer must
also ensure that other employees do not harass the individual based on
this association.
Example :
Martin and his supervisor,
Adam, have had an excellent working relationship, but Adam's behavior
toward
Martin has changed since Adam learned that Martin's wife has a severe
disability. Although Martin has always been a good performer,
Adam repeatedly
expresses his concern that Martin will not be able to satisfy the
demands of
his job due to his need to care for his wife. Adam has begun to
set
unrealistic time frames for projects assigned to Martin and yells at
Martin in
front of co-workers about the need to meet approaching deadlines.
Adam also
recently began requiring Martin to follow company policies that other
employees
are not required to follow, such as requesting leave at least a week in
advance. Adam has removed Martin from team projects, stating that
Martin's
co-workers do not think that Martin can be counted on to complete his
share of
the work "considering all of his wife's medical problems." Though
Martin has
complained several times to upper management about Adam's behavior, the
employer does nothing. The employer is liable for harassment on
the basis of
Martin's association with an individual with a disability.
copyright 2006, 2007,
2008 Frank
E. Stepnowski. No claim to original U.S. government
works.
Dilbert
© 2005, United Feature Syndicate, Inc
.
Footnote - Department of Labor
Regulations
29 C.F.R. Pt. 1630, App. (§ 1630.8)
Section 1630.8 Relationship or Association With an Individual With a Disability
This provision is
intended to protect any qualified individual,
whether or not that individual has a disability,
from discrimination
because that person is known to have an association
or relationship with
an individual who has a known disability. This
protection is not limited
to those who have a familial relationship with an
individual with a
disability.
To illustrate the scope of this provision, assume
that a qualified
applicant without a disability applies for a job and
discloses to the
employer that his or her spouse has a disability.
The employer thereupon
declines to hire the applicant because the employer
believes that the
applicant would have to miss work or frequently
leave work early in
order to care for the spouse. Such a refusal to hire
would be prohibited
by this provision. Similarly, this provision would
prohibit an employer
from discharging an employee because the employee
does volunteer work
with people who have AIDS, and the employer fears
that the employee may
contract the disease.
This provision also applies to other benefits and
privileges of
employment. For example, an employer that provides
health insurance
benefits to its employees for their dependents may
not reduce the level
of those benefits to an employee simply because that
employee has a
dependent with a disability. This is true even if
the provision of such
benefits would result in increased health insurance
costs for the
employer.
It should be noted, however, that an employer need
not provide the
applicant or employee without a disability with a
reasonable
accommodation because that duty only applies to
qualified applicants or
employees with disabilities. Thus, for example, an
employee would not be
entitled to a modified work schedule as an
accommodation to enable the
employee to care for a spouse with a disability. See
Senate Report at
30; House Labor Report at 61-62; House Judiciary
Report at 38-39.
Remember that every
case is different, and the rules are technical. Proving a case is
different from making an allegation. As courts become more
familiar with the association part of the ADA, you can expect more
guidance as courts sort out what kinds of claims meet the test and
which ones do not. Also, the law has technical requirements which
may exclude those who are not qualified employeees or employers.
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