EEOC Provides New Guidance on Association Provision of the Americans with Disabilities Act

For Immediate Release
February 15, 2006

The most common lawsuits brought under the Americans with Disabilities Act (ADA) involve complaints of discrimination by applicants or employees alleging that the employer has discriminated against them on the basis of their disability. The ADA, however, contains another provision that prohibits employers from discriminating against applicants and employees based upon their relationship or “association” with an individual with a disability. In this instance, whether or not the applicant or employee has a disability is irrelevant.

In October 2005, the EEOC provided some additional guidance on this provision of the ADA. The association provision of the ADA is intended to prevent employers from taking adverse actions against an applicant or employee based upon unfounded stereotypes and assumptions about individuals who associate with people who have disabilities. For example, it is unlawful for an employer to refuse to hire an individual associated with someone with a disability based upon the assumption that the individual will be out of work frequently to care for the person with the disability. It is important to note that a family relationship is not required before an applicant or employee is protected by the ADA. The EEOC further stated that an employer cannot fire an employee who works with people who are HIV-positive or have AIDS based on the concern that the employee will contract the disease.

Prohibited Conduct
Although not an exhaustive list, an employer violates the association provision of the ADA if it engages in the following types of conduct:

Refusing to hire the best qualified applicant based on the belief that the applicant’s need to care for a spouse, child or parent will have a negative impact on his work attendance and performance.
Denying an employee an opportunity for promotion or advancement based on the assumption that the employee will be stricken by the same disease as a family member and therefore, will become unreliable at work.
Denying healthcare coverage to an employee’s disabled dependent because it will lead to increased health insurance premiums when that coverage is provided to other employees’ dependents.
Denying an employee other benefits and privileges of employment that are available to other employees based upon their association with a person with a disability. For example, not allowing one employee to bring their disabled child to a employer sponsored party when other employees’ children are permitted to attend.
Terminating an employee because their association with someone with a disability does not reflect well on the image of the employer.
Harassment
An employer can also be liable for harassment under the association provision.  Moreover, an employer has a duty to protect its employees from harassment by other employees based upon the employee’s relationship with a person with a disability. For example, a supervisor begins to treat an employee differently after learning of the employee’s disabled spouse and the employee complains about the harassment. If the employer does nothing to address the employee’s complaints it may be held liable for harassment on the basis of the employee’s association with an individual with a disability.

Reasonable Accommodation
It is essential that an employer not treat its employees who are associated with a disabled individual differently than other employees. For example, an employer cannot allow one employee to take a leave of absence for a certain personal or family reason, but deny another employee from taking leave to care for a disabled individual under similar circumstances.

Retaliation
Finally, it is always important to remember that the ADA prohibits an employer from retaliating against an individual who opposes discriminatory employment practices or participates in any investigation, proceeding, or litigation.

Contact Information:
Patrick L. Lail
Healthcare Employers Practice Group
Elarbee, Thompson, Sapp & Wilson, LLP
Atlanta, Georgia
http://www.elarbeethompson.com   
lail@elarbeethompson.com  
(404) 582-8428