The EEOC recently issued a document entitled “Questions and Answers About the Association Provision of the Americans with Disabilities Act” (“Q&A”) which reminds employers that the Americans With Disabilities Act (“ADA”) protects not only applicants and employees from discrimination based on their own disabilities, but also based on their association with people with disabilities. The ADA’s nondiscrimination standards, including the “association provision,” apply to federal sector employees under section 501 of the Rehabilitation Act, as amended. The purpose of the Q&A is to explain the requirements of the ADA’s association provision and provide examples of how it applies in certain employment situations.
The association provision of the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability. The ADA does not require a family relationship for an individual to be protected by the association provision. The key is whether the employer is motivated by the individual’s relationship or association with a person who has a disability. The purpose of the association provision is to prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.
For example, notes the Q&A, it is unlawful to refuse to hire an applicant who has a child with a disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable, fire an employee who works with people who are HIV-positive based on the assumption that the employee will contract the disease, or deny an employee health care coverage available to other employees because of the disability of an employee’s dependent. See Polifko v. Office of Personnel Management, EEOC Request No. 05940611 (January 4, 1995) ( it is unlawful under the association provision to “exclude or deny equal jobs or benefits to, or otherwise discriminate against” an individual based on his or her association with an individual with a known disability).
It is important to remember that the ADA’s “reasonable accomodation” provisions do not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. See EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at n. 5 (October 17, 2002). For example, the Q&A states, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability.
However, an employer must avoid treating an employee differently than other employees because of his or her association. For example, if an employer allows employees to take annual leave for generic “personal reasons,” the employer could not dissallow leave requested to care for a disabled friend. And, while the ADA does not require an employer to modify leave policies, an employee who needs leave to care for an immediate family member with a disability may be entitled to leave under the Family and Medical Leave Act (FMLA). The FMLA provides up to 12 workweeks of unpaid leave during any 12-month period to care for a spouse, child, or parent with a serious health condition.
Any federal applicant or employee who believes that his or her employment rights have been violated on the basis of an association with a person with a disability and wants to make a claim against his or her employer must utilize the normal EEO process. This means that the applicant or employee must contact the EEO office and “initiate counseling” within 45 days from the date of the alleged violation.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.fedweek.com/pub/index.php