Beth was usually a reliable employee, but recently she seemed less focused, even if she was still getting her job done. The news of her husband’s cancer had hit her hard, and it looked like he might need some pretty extensive care. Even though Beth had been Dr. Spencer’s office manager for 10 years, he thought that much stress might mean it was time to start looking for a replacement. Before you take that next step, READ THIS TRAINER, and make sure you understand associative discrimination.
In the CEDR Solution Center, our advisors often assist in analyzing the risk of a particular employment action. One of the essential things to ask in this analysis is, “Is this employee in any protected class?” Employers occasionally reply with, “Well, her daughter has special needs – does that count?” or “His wife is undergoing cancer treatment – is that relevant?”
These considerations bring to mind the concept of “associative discrimination.” Associative discrimination is discrimination based on an employee’s known relationship with a person with a disability. This type of discrimination is prohibited under the Americans with Disabilities Act (ADA), which applies to employers with fifteen (15) or more employees. Many states have similar disability laws applying to all employers, or to employers with fewer employees, so it’s important to consult your local laws in addition to the ADA.
Most commonly, associative discrimination arises in hiring, firing, or promotion considerations. Employers are not permitted to make employment decisions based on unfounded concerns about an employee’s association with an individual in a protected class.
Examples of unfounded concerns are demonstrated in the following situations:
- During the interview process, a candidate discloses that her husband is disabled and is unable to work and drive a car. The employer chooses to hire a less qualified candidate instead, because of an unfounded concern that the first candidate would have attendance issues due to the need to care for her disabled spouse.
- An employee informs her employer that her child has recently been diagnosed with cancer. The employee does not request a schedule modification, but the employer decides to cut her hours in order to avoid unwanted attendance issues from the child’s illness.
- An employee has an elderly parent who has just been diagnosed with dementia. The employer happens to know that this employee is very involved with the care of this parent. The employer had planned to promote this employee to a management position, but upon learning this information, the employer decides to promote another, less qualified employee, due to the unfounded belief that the first employee will begin to miss work more frequently.
The above three scenarios demonstrate situations where an employer has engaged in associative discrimination. But let’s consider the following situation:
- An employee’s spouse has a chronic health condition. The employee asks the employer to reclassify her position as part-time and to cut her hours so that she has more time to care for her spouse.
In this situation, the employee has requested an accommodation. The big catch when it comes to associative discrimination is that, although they cannot discriminate, employers are generally NOT REQUIRED to provide accommodations for someone associated with a disabled individual. In the example above, the employer would not be required to reclassify the position to part-time in response to this request.
Note that there are exceptions to this rule. For example, if an employer has more than 50 employees, they may be subject to the Family and Medical Leave Act, which would allow for time off to care for a family member. Additionally, some states, like California, have laws that do require employers to accommodate an employee’s needs arising from the disability of a family member.
IN A NUTSHELL: Employers are not permitted to discriminate against employees based on unfounded concerns about an employee’s association with an individual in a protected class. However, employers are also not required to provide accommodations for employee’s needs arising from their association with an individual in a protected class.
Avoiding Associative Discrimination: 3 Takeaways
- It is possible to illegally discriminate against an employee based on another person’s disability
- Your belief that you didn’t discriminate isn’t enough to protect you
- Just because an employee requests an accommodation for their family member’s disability, does not (in most states/situations) mean you have to give it to them.
CEDR is Here to Help!
If you’d like to discuss a specific situation related to associative discrimination or a requested accommodation, or any other ongoing employee issue in your practice, our HR Advisor team here at CEDR will be happy to assist. As always, we’ll solve one issue for free. Just give us a call at 866-414-6056, or email email@example.com. We’ll provide you with actionable guidance that will lessen your risk!