Plaintiff wins associational discrimination claim in Second Circuit

The Court of Appeals has ruled that a man who was fired shortly asking his employer for time off to take care of his ailing daughter has stated a claim for associational discrimination under the Americans with Disabilities Act. This case represents the first time a plaintiff has prevailed in the Court of Appeals on this issue.

The case is Kelleher v. John A. Cook, Inc., issued on September 24. I represent the plaintiff and argued the appeal. Kelleher worked for a Kingston, N.Y., company as a laborer. His young daughter has Rett Syndrome, a serious illness that affects her ability to speak, walk and breathe. After plaintiff told management that his daughter's illness required him to rush home after work to aid in her care, his relationship with the company deteriorated, and at one point, when he asked to work eight-hour shifts for one week (instead of the 10-12 hour shifts), management said "his problems at home were not the company's problems," and he would not receive a raise. The next day, after plaintiff's daughter suffered a near-fatal seizure, plaintiff told defendant he could not work the following Monday. He arrived late to work on Tuesday and learned he had been demoted. A few weeks later, after management again denied plaintiff's request for eight-hour shifts, he was fired, purportedly for arriving to work 10-15 minutes late.

Plaintiff proceeds under the "associational discrimination" theory under the ADA. In 2016, the Court of Appeals outlined how plaintiffs can win these claims:

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. One scenario that may support an inference that the adverse employment decision was motivated by associational discrimination is “distraction”: the employer’s “fear[] that the employee will be inattentive at work due to the disability of the disabled person.”

That case was Graziadio v. Culinary Inst. of America, 817 F.3d 415 (2d Cir. 2016). Graziadio was the Second Circuit's first foray into this area. The legal standard it set forth was narrow, and to my knowledge no such claim has survived in the Second Circuit. The district court dismissed Kelleher's case, the Court of Appeals (Jacobs, Leval and Furman [D.J.]) brings it back. The employer argued that Kelleher was really challenging management's refusal to reasonably accommodate his schedule to take care of his daughter. After all, the ADA does not require employers to reasonably accommodate employees in connection with disabled family members. But that argument does not dispose of the case. The Second Circuit states, 

Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination. Thus, in this case, Cook’s demand that Kelleher “leave his personal problems at home” after Kelleher requested one week of shortened workdays supports Kelleher’s claim that his later termination was motivated by associational discrimination.

This evidence also permits the inference that management thought that plaintiff's daughter was a "distraction" under the associational discrimination theory.All the plaintiff needs in a Rule 12 motion to avoid dismissal is "at least minimal support for the proposition that the employer was motivated by discriminatory intent." As the complaint satisfies that requirement, Kelleher has a claim, and the case is reinstated.