The Law Office of Edward L. Stepnowski
The Law Office of Francis E. Stepnowski
New: See the University of California Center for
Workplace Law Family Responsibilities Discrimination
Litigation Update 2016 Caregivers in the Workplace By Cynthia
Thomas Calvert
New: Local ordinances
which provide some protection
Using the ADA for Parents of
Children with Disabilities.
Copyright 2006, 2007, 2008 by Frank E.
Stepnowski
updated April 2009, January 24, 2013.
While most people know that the Americans
with Disabilities Act (ADA) protects those
with disabilities from discrimination in
employment, recent court cases have extended
the protection to parents of children with
disabilities. For example, if a parent
of a child with cerebral palsy has to leave
early to care for the child, the employer
may not retaliate against the parent.
The protections of this law are limited, but
can be worth investigating.
In a little-used aspect of the ADA, the law
prohibits employers from discrimination
against employees who have an "association"
with someone with a disability. 42
U.S.C. sec. 12112(b)(4). This law
would prohibit a discrimination against “a
qualified individual because of the known
disability of an individual with whom the
qualified individual is known to have a
relationship or association.” Thus, a
parent has a relationship with a child with
a disability.
(Now codified at 42 U.S.C.
12182(b)(1)(E)(Title III); 28 CFR
35.130(g).)
"(E)
Association
It
shall be discriminatory to exclude
or otherwise deny equal goods,
services, facilities, privileges,
advantages, accommodations, or other
opportunities to an individual or
entity because of the known
disability of an individual with
whom the individual or entity is
known to have a relationship or
association."
Get the job done
In two recent cases from the Seventh Circuit
Court of Appeals in Chicago, the court noted
that an employer cannot fire, demote, or
harass a parent because the employer thinks
that parent may be "somewhat
inattentive" during work hours.
Employees who are distracted by family
needs, but still manage to get the job done
without accommodations, are protected.
Larimer v.
IBM, 370 F.3d 698 (7th Cir.
2004).
Avoiding the evil "Catbert"
In Washington
v. Illinois Department of Revenue,
420 F. 3d 658, 662 (7th Cir. 2005), the
Seventh Circuit ruled that an employer
cannot make a work change that exploits a
worker's special vulnerability. In
Washington's case, she needed to get home
early to care for her disabled child.
The employer could not spitefully change her
work schedule when it knew she had to leave
early. The court even cited the evil
human resources character Catbert from the
cartoon strip Dilbert, who delights in
pouncing on the workers'
vulnerabilities! On June 22, 2006, the
United States endorsed the approach of the
Seventh Circuit when it held the scope of
the anti-retaliation provision extends
beyond workplace-related or
employment-related retaliatory acts and
harm. Burlington Northern Santa Fe
Railway Co. v. White, 548 U.S. 53
(2006). cite.
Similarly, on February 27, 2008, the
Seventh Circuit held that a an employee
could raise a claim of "association
discrimination" when the employer fired
her because it considered her husband's
medical bills, paid by the employer's
health plan, to be too costly. DeWitt v.
Proctor Hospital, 517 F.3d 944
(7th Cir. 2008). The concurring
opinion suggested, however, that the
employer's action was really benefits
discrimination, prohibited under section
510 of ERISA, rather than association
discrimination against someone with a
disability, since the employer was
reacting to anyone who had costly medical
bills, whether disabled or not. More
on section 510, below.
No right to accommodations:
In Overley
v. Covenant Transportation (6th
Cir. April 27, 2006), another court noted
the protections are restricted. Unlike
a claim brought by a disabled person, an
employer is not required to reasonably
accommodate an employee based on her
association with a disabled person. 29
C.F.R. Pt. 1630, App. (§ 1630.8) [footnote]; Den Hartog v.
Wasatch Academy, 129 F.3d 1076,
1084-85 (10th Cir. 1997). [See Senate
Report at 30; House Labor Report at 61-62;
House Judiciary Report at 38-39.] Thus a
parent cannot claim that an employer
discriminated against her by not granting
her sufficient time off or allowing her to
modify her schedule so that she could care
for her daughter. An employee who cannot
meet the attendance requirements of her job
is not protected by § 12112(b)(4). See Tyndall v.
National Education Centers., Inc. of Cal.,
31 F.3d 209, 213 (4th Cir. 1994) (reaching
this conclusion by analyzing the statute’s
legislative history and governing
regulations). Courts have surmised that an
employee would be protected under the
statute if the employee was only distracted
at work, but did not require a reasonable
accommodation, Larimer, 370 F.3d at 700,
or if the employer’s decision was based
solely on an unsubstantiated belief that the
employee would have to miss work because of
the association, Tyndall, 31 F.3d at 213.
The Standard:
Under a test developed by the Tenth Circuit,
a plaintiff can make out a claim under §
12112(b)(4) by showing that:
she was qualified for the position;
she was subject to an adverse
employment action;
she was known to have a relative with
a disability; and
the adverse employment action occurred
under a circumstance that raises a
reasonable inference that the disability
of the relative was a determining factor
in the decision.
See Larimer,
370 F.3d at 701.
New:
On September 25, 2008, the President
signed the Americans with Disabilities
Act Amendments Act of 2008 (ADAAA) .
The Act, effective January 1, 2009,
emphasizes that the definition of
disability should be construed in
favor of broad coverage of individuals
to
the maximum extent permitted
by the terms of the ADA.
Different from FMLA
The Federal Medical Leave Act provides that
covered employers must grant an eligible
employee up to a total of 12 work-weeks of
unpaid leave during any 12-month period for
one or more of the following reasons:
for the birth and care of the newborn
child of the employee;
for placement with the employee of a
son or daughter for adoption or foster
care;
to care for an immediate family member
(spouse, child, or parent) with a
serious health condition; or
to take medical leave when the
employee is unable to work because of a
serious health condition.
Covered employers are those with at least 50
employees.
(More on FLMA below.)
Health Care
discrimination by association prohibited:
A regulation effective July 18, 2016,
states:
"Nondiscrimination on
the basis of association.
A covered entity
shall not exclude from participation in,
deny the benefits of, or otherwise
discriminate against an individual or
entity in its health programs or
activities on the basis of the race,
color, national origin, sex, age, or
disability of an individual with whom
the individual or entity is known or
believed to have a relationship or
association." 45 CFR
part 92, sec.92.209.
This regulation
applies to every health program or activity,
any part of which receives Federal financial
assistance provided or made available by the
Department; every health program or activity
administered by the Department; and every
health program or activity administered by a
Title I entity
Note that
since Section 1557 explicitly incorporates
Section 504's prohibitions against
disability-based discrimination, it
therefore encompasses a ban on the
unnecessary segregation of individuals
with disabilities. As such, and as
required by Title II of the ADA and
Section 504 and interpreted in Olmstead
v. L.C.and its
progeny, public entities (State and local
governments) must administer services to
individuals with disabilities in the most
integrated setting appropriate to their
needs unless doing so is a fundamental
alteration of the public entity's service
delivery system. The “most integrated
setting” mandate applies to the full
spectrum of the public entity's service
delivery system, including coverage and
reimbursement decisions, when the entity
“(1) directly or indirectly operates
facilities and or/programs that segregate
individuals with disabilities; (2)
finances the segregation of individuals
with disabilities in private facilities;
and/or (3) through its planning, service
system design, funding choices, or service
implementation practices, promotes or
relies upon the segregation of individuals
with disabilities in private facilities or
programs.”
The regulation comment
explained that the language of Section
1557 makes clear that individuals may not
be subject to any form of discrimination
“on the grounds prohibited by” Title VI
and other civil rights laws; the statute
does not restrict that prohibition to
discrimination based on the individual's
own race, color, national origin, age,
disability or sex. It further noted that a
prohibition on associational
discrimination is consistent with
longstanding interpretations of existing
anti-discrimination laws, whether the
basis of discrimination is a
characteristic of the harmed individual or
an individual who is associated with the
harmed individual. A prohibition on
associational discrimination is also
consistent with the approach taken in the
ADA, which includes a specific prohibition
of discrimination based on association
with an individual with a disability. (42
U.S.C. 12182(b)(1)(E)(Title III); 28 CFR
35.130(g).)
New FMLA
documents expand coverage for adult
children with disabilities.
On January 14, 2013, the Department of Labor
issued new guidance which expands the
circumstances where parents can take FMLA
leave to care for adult children with
disabilities. This new interpretation
states that the age of the child when he or
she becomes disabled is irrelevant to the
Act. It also uses the definitions of
the Bush ADAAA (listed above) to those for
whom leave can be taken.
For children below the age of 18, no
disability need be shown, just a need to
care for the child due to a serious
health condition.
An adult child (one who is 18
years of age or older) must have a
mental or physical disability and be
incapable of self-care because of that
disability.
The definition of disability is a
physical or mental impairment that
substantially limits a major life
activity (as interpreted by the EEOC) to
define physical or mental
disability.
Incapable of self-care means as
when an adult son or daughter requires
active assistance or supervision to
provide daily self-care in three or more
of the activities of daily living
or instrumental activities of daily
living because of mental or physical
disability
The FMLA regulations state that an
adult child is “incapable of self-care
because of mental or physical
disability” when he or she “requires
active assistance or supervision to
provide daily self-care in three or more
of the ‘activities of daily living’ or
‘instrumental activities of daily
living’.”
Activities of daily living
include caring appropriately for one’s
grooming and hygiene, bathing,
dressing and eating.
Instrumental activities of daily
living include cooking, cleaning,
shopping, taking public
transportation, paying bills,
maintaining a residence, using
telephones and directories, and using
a post office.
A parent will be entitled to
take FMLA leave to care for a son or
daughter 18 years of age or older, if
the adult son or daughter:
(1) has
a disability as defined by the ADA;
(2) is
incapable of self-care due to that
disability;
(3) has
a serious health condition; and
(4) is
in need of care due to the serious
health condition
New: FMLA
covers IEP meetings (August 8, 2019)
The US Department of Labor has written a
nonprecedential letter helping parents of
students with IEPs.
Letter FMLA2019-2- A states
that An employee may use FMLA
leave intermittently or on a reduced leave
schedule when medically necessary
because of a family member’s serious
health condition. See 29 U.S.C. § 2612(b)(1);
29 C.F.R. § 825.202. an eligible
employee of a covered employer may take up
to twelve weeks of job-protected,
unpaid FMLA leave per year “to care for
the spouse, or a son, daughter, or
parent, of the employee, if such spouse,
son, daughter, or parent has a serious
health condition.”Care for a
family member includes “both
physical and psychological care” and
“mak[ing] arrangements for changes in care
....” 29 C.F.R. § 825.124(a)–(b).
The Department Wage and Hour Division
Administrator Cheryl Stanton ruled that attendance at
IEP meetings is
“essential to [a parent's] ability to provide
appropriate physical or psychological care”
to your children. [She]
attends these meetings to help
participants make medical decisions
concerning your children’s medically-prescribed
speech, physical, and occupational
therapy; to discuss your
children’s well-being and
progress with the providers of such
services; and to ensure that your
children’s school environment is suitable
to their medical, social,
and academic needs. Your child’s
doctor need not be present at CSE/IEP meetings in order
for your spouse’s leave to qualify for
intermittent FMLA leave.
The ADAAA expanded the ADAs definition of
disability by broadening the definition of
major life activities. The ADAAA includes
examples of many kinds of major life
activities that the EEOC and courts
recognized prior to enactment of the ADAAA,
such as caring for oneself, performing
manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting,
bending, speaking, breathing, learning,
reading, concentrating, thinking,
communicating, and working. See 42
U.S.C. 12102(2)(A). The expanded
definition also includes operation of a
major bodily function, such as functions of
the immune system, normal cell growth,
digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine,
and reproductive functions. Id.
at 12102(2)(B). It should be noted
that the examples provided in the statute
are illustrative and do not constitute an
exhaustive list of activities or functions
that fit under the expanded definition of
major life activities. Id. at
12102(2)(A)-(B).
Some impairments will virtually always
qualify as disabilities because, by their
very nature, they substantially limit at
least one major life activity, for example,
deafness, blindness, intellectual
disability, missing limbs or mobility
impairments requiring the use of a
wheelchair, autism, cancer, cerebral palsy,
diabetes, epilepsy, multiple sclerosis,
Human Immunodeficiency Virus (HIV)
infection, muscular dystrophy, major
depressive disorder, bipolar disorder,
post-traumatic stress disorder, obsessive
compulsive disorder, and schizophrenia.
More on Section 510 Benefits
Discrimination
Section 510 of the Employee Retirement
Income Security Act (ERISA), 29 U.S.C.
section 1140, prohibits an employer to
discharge, fine, suspend, expel, discipline,
or discriminate against a participant or
beneficiary for exercising any right
to the provisions of an employee
benefit plan, or interfering with the
attainment of any right to which such
participant may become entitled under the
plan. An employee cannot be fired or
demoted because he, she or a dependent needs
more medical care payable by the employer's
plan. see deWitt, above. A new
decision by the Eighth Circuit, FitzGerald
v.
Action, Inc., (.pdf) no. 07-2199 (8th
Cir. 2008), ruled that the employer may have
fired of the employee using an unlwful
pretext to avoid paying for his shoulder
treatment, based on these events: (1)
Action's inconsistent explanations for the
termination; (2) Action's failure to follow
company policy; (3) Action's more lenient
treatment of another employee; and (4) the
temporal proximity between notifying Action
of his surgery and his termination.
Note also that the Department of Labor has
issued Regulations prohibiting
discrimination in health plans:
(b) Prohibited discrimination in rules for eligibility--(1) In general--(i) A group health plan, and a health insurance issuer offering health insurance coverage in connection with a group health plan, may not establish any rule for eligibility (including continued eligibility) of any individual to enroll for benefits under the terms of the plan or group health insurance coverage that discriminates based on any health factor that relates to that individual or a dependent of that individual.
29 CFR sec. 2590.702. These
regulations are complex and nuanced, and
allow participants to join a plan while not
necessarily providing the benefits the
participants need.
The Federal EEOC has provided some examples
of the types of employer conduct the
"association" provision prohibits:
An employer may not terminate
or refuse to hire someone due
to that person's known association with
an individual with a disability.
Example
: An employer is
interviewing applicants for a computer
programmer position. The
employer determines that one of the
applicants, Arnold, is the best
qualified, but is reluctant to offer
him the position because Arnold
disclosed during the interview that he
has a child with a disability.
The employer violates the ADA if it
refuses to hire Arnold based on its
belief that his need to care for his
child will have a negative impact on
his work attendance or performance.
An employer may not deny an employee
who has an association with a person
with a disability a promotion or other opportunities
for advancement due to that
association.
Example :
Tiffany,
a part-time salesperson at a large
appliance store, applies for a
full-time position. The manager
hiring for the position rejects
Tiffany's application because, having
heard that Tiffany's mother and sister
had breast cancer, he concludes that
Tiffany is likely to acquire the same
condition and be unable to reliably
work the hours required of a full-time
salesperson. This is a violation
of the association provision of the
ADA.
An employer may not make any other
adverse employment decision
about an applicant or employee due to
that person's association with a person
with a disability.
Example
: The president of a
small company learns that his
administrative assistant, Sandra, has
a son with an intellectual
disability. The president is
uncomfortable around people with this
type of disability and decides to
transfer Sandra to a position in which
he will have less contact with her to
avoid any discussions about, or
interactions with, Sandra's
son. He transfers her to a
vacant entry-level position in the
mailroom which pays less than Sandra's
present position, but will allow him
to avoid interacting with her.
This is a violation of the ADA's
association provision.
An employer may not deny an
employee health care coverage
available to others because of the
disability of someone with whom the
employee has a relationship or
association.
Example
: An employer who
provides health insurance to the
dependents of its employees learns
that Jaime, an applicant for a
management position, has a spouse with
a disability. The employer
determines that providing insurance to
Jaime's spouse will lead to increased
health insurance costs. The
employer violates the ADA if it
decides not to hire Jaime based on the
increased health insurance costs that
will be caused by his wife's
disability.
Example
: In the previous
example, it would also violate the ADA
for the employer to offer Jaime the
position without the benefit of health
insurance for his dependents.
The employer may not reduce the level
of health insurance benefits it offers
Jaime because his wife has a
disability; nor may it subject Jaime
to different terms or conditions of
insurance.
An employer may not deny an employee
any other benefits or privileges
of employment that are available to
others because of the disability of
someone with whom the employee has a
relationship or association.
Example :
A company has an annual
holiday party for the children of its
employees. The company president
learns that one of its newly hired
employees, Ruth, has a daughter with
Down Syndrome. Worried that
Ruth's daughter will frighten the
other children or make people
uncomfortable, he tells Ruth that she
may not bring her daughter to the
party. Ruth has been denied the
benefits and privileges of employment
available to other employees due to
her association with a person with a
disability.
An employer may not subject someone to
harassment
based on that person's
association with a person with a
disability. An employer must also
ensure that other employees do not
harass the individual based on this
association.
Example :
Martin
and his supervisor, Adam, have had an
excellent working relationship, but
Adam's behavior toward Martin has
changed since Adam learned that
Martin's wife has a severe
disability. Although Martin has
always been a good performer, Adam
repeatedly expresses his concern that
Martin will not be able to satisfy the
demands of his job due to his need to
care for his wife. Adam has
begun to set unrealistic time frames
for projects assigned to Martin and
yells at Martin in front of co-workers
about the need to meet approaching
deadlines. Adam also recently
began requiring Martin to follow
company policies that other employees
are not required to follow, such as
requesting leave at least a week in
advance. Adam has removed Martin
from team projects, stating that
Martin's co-workers do not think that
Martin can be counted on to complete
his share of the work "considering all
of his wife's medical problems."
Though Martin has complained several
times to upper management about Adam's
behavior, the employer does
nothing. The employer is liable
for harassment on the basis of
Martin's association with an
individual with a disability.
Local Illinois Ordinances
Locality
Type
Ordinance
Citation
Champaign
Family
responsibilities
Champaign Code
§§ 17-1 to -5, 17-76 to
-77,17-101 to -104, 17-121 to
-128
Chicago
Parental status
Chicago Code
§§ 2-160-010 to -120, 4-404-010
to -080, §§2-74-010 to -160
Cook County
Parental
status
Cook County
Code §§ 42-30 to -42,§§ 44-41 to
-56
For example, the Chicago antidiscrimination
ordinance includes a definition of “Parental status”
meaning the status of living with one or
more dependent minor
or disabled children.
§ 2-160-020(i) California
Association Discrimination
In the Ramirez
case, the California courts hold that the
California Fair Employment and Housing
Act (FEHA) creates a duty for
employers to provide reasonable
accommodations to an employee who is
associated with a disabled
person. Ramirez had a
disabled son who required daily
dialysis. He is the only one in his
family who knows how to operate the
dialysis machine for his son, and
must be there to administer it each
night. He disclosed this information
to Dependable Highway Express (DHE)
when he first interviewed for a
truck driver job with them. The
company agreed to accommodate his
scheduling needs so that he could be
home at night for his son’s
dialysis. For several years, his
supervisors honored that scheduling
agreement. Then, a new supervisor
rejected the schedule accommodation
and terminated Castro-Ramirez for
refusing to work a shift that
prevented him from getting home in
time for his son’s dialysis.
A prima facie case of
disability discrimination under FEHA
requires a showing that (1) the
plaintiff suffered from a disability,
(2) the plaintiff was otherwise
qualified to do his or her job, with
or without reasonable accommodation,
and (3) the plaintiff was subjected to
adverse employment action because of
the disability. (Green v. State of
California (2007) 42 Cal.4th 254, 262
(Green ); see Nealy v. City of Santa
Monica (2015) 234 Cal.App.4th 359,
378–379; Jensen v. Wells Fargo Bank
(2000) 85 Cal.App.4th 245, 255
(Jensen ).) Adapting this framework
to the associational discrimination
context, the “disability” from which
the plaintiff suffers is his or her
association with a disabled person.
Respecting the third element, the
disability must be a substantial
factor motivating the employer's
adverse employment action. (Cal.Code
Regs., tit. 2, § 11009, subd. (c);
Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 229, 232; Rope,
supra, 220 Cal.App.4th at p. 658.)
This opinion however,
was retracted in part in 2016.
Footnote -
Department of Labor Regulations
29 C.F.R. Pt. 1630, App. (§ 1630.8)
Section 1630.8 Relationship or Association With an Individual With a Disability
This
provision is intended to protect any
qualified individual,
whether or not that individual has
a disability, from discrimination
because that person is known to
have an association or relationship with
an individual who has a known
disability. This protection is not
limited
to those who have a familial
relationship with an individual with a
disability.
To illustrate the scope of this
provision, assume that a qualified
applicant without a disability
applies for a job and discloses to the
employer that his or her spouse has
a disability. The employer thereupon
declines to hire the applicant
because the employer believes that the
applicant would have to miss work
or frequently leave work early in
order to care for the spouse. Such
a refusal to hire would be prohibited
by this provision. Similarly, this
provision would prohibit an employer
from discharging an employee
because the employee does volunteer work
with people who have AIDS, and the
employer fears that the employee may
contract the disease.
This provision also applies to
other benefits and privileges of
employment. For example, an
employer that provides health insurance
benefits to its employees for their
dependents may not reduce the level
of those benefits to an employee
simply because that employee has a
dependent with a disability. This
is true even if the provision of such
benefits would result in increased
health insurance costs for the
employer.
It should be noted, however, that
an employer need not provide the
applicant or employee without a
disability with a reasonable
accommodation because that duty
only applies to qualified applicants or
employees with disabilities. Thus,
for example, an employee would not be
entitled to a modified work
schedule as an accommodation to enable
the
employee to care for a spouse with
a disability. See Senate Report at
30; House Labor Report at 61-62;
House Judiciary Report at 38-39.
Remember
that every case is different, and the rules
are technical. Proving a case is
different from making an allegation.
As courts become more familiar with the
association part of the ADA, you can expect
more guidance as courts sort out what kinds
of claims meet the test and which ones do
not. Also, the law has technical
requirements which may exclude those who are
not qualified employeees or employers.
