While a recent Second Circuit case received lots of headlines regarding its discussion of individual liability under FMLA, the case has some other nuggets for employers to understand, as my colleague Gary Starr explains in today’s post.  Buried in Graziadio v. Culinary Institute of America case is a reference to the fact that the federal appeals court had not “yet had occasion to consider what standard should govern such rarely litigated claims of ‘associational discrimination.'”

That is, until now. Thanks to Gary for highlighting this notable aspect of the case.

starrYou should all know by now (and call us if you don’t) that when an employee asks for a reduced schedule to address his/her own disability, the ADA and Connecticut law may apply. Indeed, under the ADA and state law, you should engage in an interactive process to work out a way for both parties to benefit.

But what happens when it is not the employee who has the disability, but rather a family member and the employee seeks an accommodation?

While we know that employers must address the situation involving a qualified individual with a known disability, the situation is different when the employee has a relationship with someone known to have a disability.

Discrimination is prohibited based on that relationship or association, but importantly, the scope of the employee’s rights is not the same.

The Second Circuit recently explained that there are three situations that can lead to a claim of associational discrimination:

  1. Where the employee suffers an adverse action as a result of the employer’s concern over the “expense” that may cause increases in insurance due to the employee’s association with a disabled individual covered by the employer’s insurance;
  2. Where the employee suffers an adverse action as a result on the employer’s fear that the employee may contract or is genetically predisposed to develop the disability of the person with whom he/she is associated; or
  3. Where the employee suffers an adverse action due to the employer’s fear that the employee will be inattentive at work due to the disability of the disabled person.

If any of these 3 situations is the basis for the adverse action, then the recent case suggests that the employer will have to prove that it had a legitimate non-discriminatory reason for its action.

In the case before the court, there was no claim involving concerns about insurance or about the possibility that the employee might develop a disabling condition.  Instead the employee alleged that the employer feared the employee would be inattentive at work because her son developed diabetes and he was learning how to monitor his blood sugar.

While that was the allegation, the employee could not and did not show that she was fired because the employer believed she would be “distracted” by her son’s condition.  Rather, the evidence showed that she was fired because her employer’s concern was that she would not be at work at all.

The employee failed to prove she was discriminated against under the ADA as an accommodation was not available under these circumstances.

However, often these cases have an aspect under another federal law.  Here, the Family Medical Leave Act could provide her with the opportunity for intermittent leave, if necessary, and this became the basis for her lawsuit.

What cases like this demonstrate is that under the patchwork of state and federal laws, it is important to analyze a situation under differing statutes.  In this case, the employee had no recourse under the ADA, but did under the FMLA.  It is important to take the time and be sure that the requests made by an employee for an accommodation are fully reviewed.  The consequences can be protracted litigation and a large back pay judgment.