2d Circuit outlines the scope of the ADA's "associational discrimination" provision

The Court of Appeals has clarified the law governing associational discrimination claims under the Americans with Disabilities Act. The new test devised by the Court narrows the opportunities for plaintiffs to win under this statute.

The case is Graziadio v. Culinary Institute of America, decided on March 17. I have written about the Family and Medical Leave Act portions of the case at these links. This is a good case for FMLA plaintiffs, and the Second Circuit (Calabresi, Lohier and Lynch) vacates summary judgment for the employer under that statute. But the Court also says plaintiff has no case under the ADA's associational discrimination provision.

Briefly, plaintiff worked at CIA. Her son has diabetes. She was given the runaround when she sought FMLA leave to care for her son, and was eventually fired for abandoning her position. But she also sued under the ADA, 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.." Borrowing from other Circuits that have already weighed on on this, the Court of Appeals for the first time tells us what this provision means.

to sustain an “associational discrimination” claim under the ADA, a plaintiff must first make out a prima facie case by establishing: 1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.

The third prong of that test comes with an additional set of legal standards:

In evaluating what circumstances serve to raise such an inference, we draw significant guidance from the Seventh Circuit’s decision in Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004), which outlined “[t]hree types of situation[s]” or theories that would give rise to a claim of associational discrimination: 1) “expense,” in which an employee suffers adverse action because of his association with a disabled individual covered by the employer's insurance, which the employer believes (rightly or wrongly) will be costly; 2) “disability by association,” in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) “distraction,” in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person.

The distraction theory of associational discrimination might apply in Graziado's case, because she had to miss work because of her disabled son. But as the Second Circuit sees it, she has no case under the ADA. She has not presented evidence that she was fired because the CIA suspected distraction or that her concern for her son would cause her to work inadequately. Instead, she has presented evidence that she was fired because CIA thought she had taken too much leave from work to care for him. A subtle difference, but a difference.

In a footnote, the Court of Appeals says that employees like plaintiff who suffer termination because of a sick relative are not without a remedy. "In at least some such cases, employees who require accommodation in their work schedule to care for a family member with a disability may be able to take FMLA leave." The Court also notes that, under the ADA's associational discrimination provision, employees are not entitled to a reasonable accommodation; that accommodation is only available when the plaintiff-employee is disabled, not when a loved one is disabled. While it is true that the FMLA might protect employees who are fired because, like plaintiff, they have to miss work to care for a loved one, that statute is more limited in scope than the ADA. Under the FMLA, you are not covered unless you worked at least one year for the employer and logged at least 1,250 hours that year. Also, employers are not covered under FMLA unless they have 50 employees. The ADA does not have these technicalities, and it covers employers with at least 15 employees.