Discrimination by Association: It's Illegal.

You may have heard of guilt by association before, but what about discrimination by association? Everyone knows that an employer cannot discriminate on the basis of an employee's disability, but what if the employee has a disabled child? Does the child's disability affect your hiring and retention decisions of the parent? Yes. The Americans with Disabilities Act (ADA) prohibits an employer from "denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the [employee] is known to have a relationship or association."

This little-known, association discrimination provision is intended "to prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities." Therefore, it is illegal to refuse "to hire an individual who has a child with a disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable, firing an employee who works with people who are HIV-positive or have AIDS based on the assumption that the employee will contract the disease, or denying an employee health care coverage available to others because of the disability of an employee's dependent."

The ADA defines "association" as a "relationship or association with an individual who has a physical or mental impairment which limits one of more major life activities." According to the EEOC, the association need not be a familial or employment-related one. For example, an employee fired for volunteering at an HIV/AIDs clinic may have a cause of action under the ADA for association discrimination.

How Does This Work: The EEOC pursues a medical practice for association discrimination.

Relying on this association discrimination provision, the EEOC has recently filed suit in federal court in New Mexico against New Mexico Orthopaedics Associates, P.C., a 30-physician, orthopedic practice in Albuquerque. The EEOC alleges that New Mexico Orthopaedics violated the ADA by terminating Melissa Yalch's temporary job assignment at their offices and by failing to hire her for a full-time permanent position because of Ms. Yalch's "association" with her disabled daughter.

According to the suit papers, Yalch informed New Mexico Orthopaedics at the time of her temporary hire that her daughter had pending surgery at a kidney center due to her ongoing disabilities. She also allegedly informed the practice that she carried a cellphone in case she received text messages regarding her daughter's disabilities. While Yalch was under consideration for a permanent, medical assistant position several months later, she called in sick or in this case her disabled daughter was sick and required close monitoring.

The next day one of Yalch's supervisors at the practice sent her a text message telling her not to return to work. When Yalch inquired why she was fired, a supervisor at the practice allegedly texted her "[l]ook Melissa you have a child whom is medically disabled. [Y]ou do not belong in the workplace or in my clinic at [New Mexico Orthopaedics]". Yalch responded how important the permanent position was to her. Allegedly, the supervisor replied by text "[s]orry Melissa but life isn't fair sometimes. [W]e have no room here for a disability and I will not accommodate to one nor will [New Mexico Orthopaedics]. [H]ave a good day."

The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

Insights for Employers

This case provides a few signposts for employers' ADA administration and compliance.

1. The EEOC will pursue these association discrimination claims. EEOC Albuquerque Area Director Derick L. Newton warned, "This provision of the ADA -- offering protection to persons treated adversely because of their relationships with individuals with disabilities -- is a unique and integral part of our enforcement efforts." Regional Attorney Mary Jo O'Neill of the EEOC's Phoenix District Office added, "Workers who have to help relatives with disabilities, especially a small child, have enough challenges on their hands without being treated badly at work or even fired simply because of that association … Employers must comply with federal law or be subjected to the EEOC's vigorous enforcement of it."

2. Managers and supervisors must be trained to understand that discrimination by association is illegal and they should further informed that the ADA does not require a family relationship for an individual to be protected by this association provision. The EEOC's Questions and Answers About the Association Provision of the Americans with Disabilities Act is a good place to start.

3. If faced with a possible association problem, an employer may be able to defend such a claim if they have documented and established a bona fide non-discriminatory reason for the adverse employment action.

4. Finally, prudent employers must adopt policies that set the acceptable limits of text messaging, and other less formal communications, in the workplace – especially, supervisor-employee communications. Clearly, the alleged text messages from the practice supervisor above would not fall within anyone's definition of an acceptable limit. And presumably those texts will be fatal to any defense by New Mexico Orthopaedics.

If you are an employer who has questions about the association discrimination provision of the ADA, attorneys with the Sands Anderson Employment Practice Group are available to answer your questions and assist you with issues concerning this important pitfall.