WHAT IS “ASSOCIATIONAL” DISCRIMINATION?
The courts are recognizing a new form of illegal discrimination, which means that union reps should be notified and trained how to prove it exists. In short, it involves an employee being discriminated against because of the people with whom he/she associates.
The major case in this area was a recent Supreme Court one in which an employee was fired for no apparent reason. He filed an EEOC retaliation charge claiming that he was fired because his fiancée, who worked for the same employer, had filed her own discrimination charges against the employer shortly before his termination. In short, he claimed that because it would be too obvious to fire her as punishment for her charge, he was the next best way to retaliate against her.
The Supreme Court upheld his claim by noting at the outset of its decision that Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct. “The anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. . . . Rather, Title VII’s anti-retaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In other words, the employer can violate the law even if it retaliates other than through the terms and conditions of employment. The court also noted that the anti-retaliation provisions might also protect actions against a friend or even a valued co-worker. (See Thompson v. North Amer. Stainless)
A more recent case came out of the Sixth Circuit federal court involving a manager who claimed he was fired because his wife suffered from a rare and debilitating disorder that required expensive treatment. He claimed he was fired because of his association with his wife and her disabling condition.
The court said that the law allows such a claim. “His claim arises under section 12112(b)(4) of the Act, which prohibits ‘excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.’ ”
It then outlined the items the employee must be able to prove to force the employer to put forth a defense. They track s closely the typical prima facie test.
(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.
The court then noted that there are three principal ways to establish a reasonable inference. First, the “expense” theory which 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. Second, 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. Third, 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. Once the employee establishes any of these the employer has the obligation to prove that it had other legitimate reasons for taking the action it did.
While the employee was unable to establish that any of those three circumstances was present in his termination, the case created a simple to use method of assessing an employee’s claim of discrimination, particularly employees who are care-givers to others. (See Stansberry v. Air Wisconsin Airlines.) However, even though the employee was theoretically protected by the disability law, please remember that employers are not required to provide reasonable accommodations to nondisabled workers under the Act.
These two decisions underscore that discrimination can be based on an employee’s association with someone else, someone who might not even work for the employer. Union reps need to keep that in mind when examining the basis of any adverse employment decision.