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The Law Office of Edward L. Stepnowski 
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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:
  1. she was qualified for the position;
  2. she was subject to an adverse employment action;
  3. she was known to have a relative with a disability; and
  4. 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 workweeks 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.

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

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.

see more details at BenefitsDiscrimination.html

Federal Guidance:

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)
copyright 2006, 2007, 2008, 2016 Frank E. Stepnowski. No claim to original U.S. government works.
Dilbert © 2005, United Feature Syndicate, Inc.

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.


Links to other articles




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