Tuesday, September 6, 2016

Associational disability discrimination claims are rare, yet dangerous

I have been blessed with employers that are sympathetic to the fact that my son was born with some life-long medical issues. I’ve never had an issue taking time for a doctor’s appointment, or an unexpected illness, or the three weeks he spent inpatient at the Cleveland Clinic five (very) long years ago.

Some employees aren’t so lucky.

The EEOC reports that New Mexico Orthopaedics Associates will pay $165,000 to settle a lawsuit for associational disability discrimination. According to the agency, NMOA violated the ADA by firing a temporary employee, and failing to hire her for a full-time position, because of her relationship with her then three-year old disabled daughter.

The ADA prohibits three different types of associational discrimination.
  1. Expense — discrimination based on the cost of insuring the associated disabled person under the employer’s health plan.
  2. Disability by association — discrimination based on the employer’s fear that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have).
  3. Distraction — discrimination based on the employee’s inattentiveness at work because of the disability of the associated person.
EEOC v. New Mexico Orthopaedics Associates was based on the latter — distraction. According to EEOC Regional Attorney Mary Jo O’Neill:
The ADA specifically prohibits discrimination against mothers, fathers, caregivers, family members or others who are associated with persons with disabilities. Employers, especially those employers in medical fields, should be careful to provide employment opportunities based solely on the qualifications of the employee or applicant and not impermissible factors such as their association with an individual with a disability.
While this statement is very true, these cases are also very rare. Indeed, New Mexico Orthopaedics Associates was the first and only case ever filed by the EEOC in New Mexico alleging associational disability discrimination. Nevertheless, as this case illustrates, rare does not equal inexpensive. This employer learned an expensive and necessary lesson — caregivers have rights.
I’ll leave you with the words of the victim in the case, Melissa Yalch Valencia:
It should never have happened. A mother should never have to worry about losing her job because her child has a disability. I hope the lawsuit encourages moms and dads to stand up fearlessly when things like this happen. I also hope this lawsuit and this resolution encourages companies to train supervisors and employees to assure things like this don’t happen in the workplace.
Employers, take heed and avoid discriminating against those with caregiving responsibilities for disabled family members. It’s not just the legal thing to do; it’s also the right thing to do.

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