Best Ohio Disability Discrimination Attorney Answer: Can my job fire me because of a family member’s disability? How can sue my employer after I was wrongfully terminated from my job because I have a disabled child? Can my employer retaliate against me for taking care of a disabled friend?
As our employment discrimination lawyers have frequently blogged about disability discrimination, employees with disabilities are legally protected from workplace discrimination and retaliation by both the Americans with Disabilities Act of 1990 (ADA) and Ohio R.C. § 4112.02(A). What about an employee who feels she has been discriminated or retaliated against, not because of her own disability but because of her relationship with a disabled person?
Typically, to make out a disability discrimination claim, an individual must show the she has a disability, was able to perform the essential duties of her job, and that some adverse employment action was taken against her because of her disability. However, the ADA also contains an “association discrimination“ provision that, under certain circumstances, allows employees who have been discriminated against because of their relationship to a disabled individual to pursue a disability discrimination claim.
To make out a claim of associational discrimination, an employee must show that the employee had a close relationship with a disabled individual, that the employer knew of this relationship, that the employee was capable of performing her job duties, that there was an adverse employment action, and that the employee’s relationship with a disabled person was a motivating factor in the adverse employment action. That’s a mouthful but what it boils down to is this: an employer may not take adverse employment action against an employee based on stereotypes or assumptions about employees who associate with disabled persons.
The relationship requirement can be met by a relationship with an employee’s family member or another disabled person. The critical point is that the employer must know about the relationship and must make an unfounded assumption about the employee because of the relationship. A typical example would be an employer assuming that a job applicant who has a disabled child would be a worse employee, or would need to be away from work more often, than an applicant without a disabled child. An employer who made a hiring decision based on that reasoning would be in violation of the protections afforded by the ADA’s association discrimination provision.
Notably, unlike a disability discrimination claim brought by a disabled employee, in the case associational discrimination, the employer is not required to make any reasonable accommodations. In Overley v. Covenant Transport, Inc., a case from the Sixth Circuit Court of Appeals (Ohio), the plaintiff, Sharon Overley, filed a disability discrimination law suit asserting the that Covenant, her employer, wrongfully terminated her after she told her boss that she would have to take off of work on a particular Saturday as a result of obligations to her disabled daughter. The Sixth Circuit held that there was a legal difference between the rights under the ADA for a disabled individual seeking accommodation versus an employee that was associated or related to a disabled person. Because of this difference, the Sixth Circuit Court held that the ADA does not necessitate employers to reasonably accommodate their employees that are related to or associated with a disabled individual. The Court held:
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); Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084-85 (10th Cir. 1997). Thus, Overley cannot claim that Covenant 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. Nat’l Educ. Ctrs., 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. Neither of these scenarios is applicable to the case at hand. Covenant did not base its decision on a belief that Overley would have to miss work to care for her daughter, but rather on her record of declined shifts and the absence on January 4. She was “not  entitled to a modified work schedule,” 29 C.F.R. Pt. 1630, App. (§ 1630.8), and nothing in the ADA allows an employee to miss a shift without an excuse, whether or not the person is associated with a disabled individual.
So, what associated disability claims are covered? This was answered by the Seventh Circuit Court of Appeals in Larimer v. International Business Machines, which gave a better answer than I am capable of:
Three types of situation are, we believe, within the intended scope of the rarely litigated (this is our first case) association section. We’ll call them “expense,” “disability by association,” and “distraction.” They can be illustrated as follows: an employee is fired (or suffers some other adverse personnel action) because (1) (“expense”) his spouse has a disability that is costly to the employer because the spouse is covered by the company’s health plan; (2a) (“disability by association”) the employee’s homosexual companion is infected with HIV and the employer fears that the employee may also have become infected, through sexual contact with the companion; (2b) (another example of disability by association) one of the employee’s blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin); (3) (“distraction”) the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours. The qualification concerning the need for an accommodation (that is, special consideration) is critical because the right to an accommodation, being limited to disabled employees, does not extend to a nondisabled associate of a disabled person. 29 C.F.R. § 1630.8; Den Hartog v. Wasatch Academy, supra, 129 F.3d at 1083-85; Tyndall v. National Education Centers, Inc., supra, 31 F.3d at 214.
If you feel like your employer has discriminated or retaliated against you because of your relationship with a disabled individual, you should contact the disability discrimination attorneys at The Spitz Law Firm.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at (216) 291-4744. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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