Employers know that the Americans with Disabilities Act ("ADA") protects qualified applicants and employees with disabilities from employment discrimination. However, some may not be sensitive to the fact that, under certain circumstances, the ADA, as well as the Employee Retirement Income Security Act ("ERISA") and the Family and Medical Leave Act ("FMLA") also protect non-disabled employees from discrimination and retaliation. When an employer terminates an employee who merely has a relationship or association with an individual with a disability, one or more of these statutes may be triggered. A recent Arizona case demonstrates the overlap of these statutes. McPhail v. Cox Com, Inc.*
ADA. A somewhat overlooked provision of the ADA 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."** Based on this provision, the EEOC has offered, as an example of "associational discrimination," that "an employer may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability."
ERISA. Similarly, Section 510 of ERISA makes it unlawful to discharge an employee for exercising any right to which the employee is entitled under the provisions of an employee benefit plan. More simply, ERISA protects an employee from dismissal because of the employee's (or employee's covered dependents') use of certain employee benefits.
FMLA. Finally, under the FMLA, it is unlawful for an employer to consider an employee's use of FMLA leave as a negative factor when making hiring, promotion, or disciplinary decisions.***
McPhail illustrates why employers should be aware of these potential claims, even when the employee is not disabled. In McPhail, a 15-year employee with an allegedly unblemished work record was fired for excessive absences, and raised claims of discrimination under the ADA, FMLA, and ERISA, retaliation under Title VII and wrongful termination under Arizona law. The plaintiff himself was not disabled. However, his dismissal occurred less than a year after his wife was diagnosed with cancer, a recognized disability under the ADA. The plaintiff claimed that he was terminated because of his wife's disability and the employer's speculation about his further time off and the insurance costs to the company due to his wife's cancer.
Judge Campbell denied the company's motion to dismiss the case, concluding that the plaintiff had alleged sufficient facts to support claims under the ADA, FMLA and ERISA: the plaintiff's 15-year work record; his notifying the defendant of his wife's condition in order to utilize FMLA leave; his wife's cancer care cost approximately $5,000 per month, paid by a health care plan funded by the employer; and the company fired him due to excessive absences after he began using his FMLA leave to care for his wife.
The court held that, if taken as true, these allegations allowed for an inference of discriminatory motive due to the temporal proximity of the discharge and the disclosure of the plaintiff's spouse's disability. (This was despite the fact that the so-called proximity was almost a full year.) Accordingly, the court held, the plaintiff satisfactorily pleaded a claim of "associational discrimination" under the ADA. Similarly, the plaintiff satisfactorily pleaded a claim under the FMLA by alleging that he received discipline for absences that were due to FMLA leave. Finally, the allegations established an ERISA discrimination claim because the plaintiff's discharge occurred within months of his wife's use of a significant amount of medical benefits, thus allowing an inference that the discharge was related to the use of benefits.
When taking adverse action against an employee who is "associated with" or related to a disabled individual, employers must proceed cautiously, basing any discipline or dismissal on an employee's demonstrated poor performance or misconduct, or other legitimate, nondiscriminatory reason. Employers should not merely speculate that an employee's association with a disabled person will cause the employee's future job performance to suffer, that the employee's care for a family member will require too many absences from work, or that the care for the employee's disabled relation will be too expensive for the employer.