The ADA ‘Association’ Provision: What it is and Why Employers Need to Understand It
Many, if not most employers, have a basic understanding that the Americans With Disabilities Act (ADA) is a federal law that prohibits discrimination on the basis of disability. They also usually know that Title I of the ADA makes it unlawful for any employer with 15 or more employees to discriminate against a qualified employee or applicant because of a disability with respect to any aspect of employment.
Far less known to employers, however, is that the ADA also includes a so-called “association” provision, which protects both employees and applicants from discrimination based upon their relationship or association with an individual with a disability regardless of whether the employee or applicant has a disability herself.
The underlying premise of the association provision is to prevent employers from taking adverse employment actions against employees or applicants based upon assumptions and stereotypes about individuals who are related to, or associated with, individuals who have disabilities.
What Does “Relationship or Association” Mean?
The association provision applies not only to family relationships, but also to anyone else with whom the employee or applicant is minimally acquainted.
The focal point is whether the employer is motivated by the individual’s relationship or association with a person with a disability. An EEOC Guidance gives the example of an employer who learns that an employee is providing assistance to a homeless shelter that is known for providing job placement assistance for people living with HIV/AIDS, and then terminates the employee because of its concern that its image will be tarnished if it becomes known that an employee is “associating” with a person who has HIV/AIDS. In that circumstance, the employer’s action would be discriminatory even though the employee’s relationship with the individual is not based on a family relationship and may be quite minimal.
What Types of Conduct are Prohibited by the Association Provision?
The association provision of the ADA prohibits various types of conduct, including the following:
- An employer may not terminate or refuse to hire someone due to that person’s known association with an individual with a disability;
- An employer may not deny an employee who has an association with a person with a disability a promotion or other advancement opportunities due to that association;
- An employer may not make any other adverse employment decision about an employee or applicant due to that person’s association with a person with a disability;
- An employer may not deny an employee health care coverage available to others because of the disability of an individual with whom the employee has a relationship or association;
- An employer may not deny an employee any other benefits or privileges of employment that are available to others because of the disability of an individual with whom the employee has a relationship or association; and
- An employer may not subject someone to harassment based on that person’s association with a person with a disability. An employer must also ensure that other employees do not harass the individual based on this association.
Is There an Accommodation Requirement?
An interesting question is whether the ADA requires an employer to reasonably accommodate a person who does not have a disability as a result of that individual’s association with someone who has a disability.
The answer is that the ADA provides that only qualified employees and applicants who have disabilities are entitled to a reasonable accommodation. Thus, for example, although the ADA does not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability, it is prohibited from treating an employee differently than other employees because of his or her association with a person with a disability.
The EEOC Guidance offers the example of an employer that provides unpaid leave and allows an employee who wishes to attend a father/son camp to take unpaid leave. The same employer, however, denies unpaid leave to an employee who indicated that she wants to use the leave to care for her mother with a disability who is coming to town for medical treatments. In that scenario, if the employer grants requests for unpaid leave for certain personal leave or family reasons, it would be a violation of the ADA’s association provision to deny the employee’s request because she wishes to the use the time to assist her mother with a disability.
Conclusion and Next Steps
The “association” provision of the ADA imposes restraints upon employers in ways that may not have been evident. Particularly in light of the association provision of the ADA, employers should strongly consider the following:
- Training all employees on basic tenets of the ADA, and specifically the association provision.
- Taking the appropriate steps to ensure that all employment related decisions — including hiring, promotion, demotion, transfer, etc. — are based solely upon the merits of the situation.
- Ensuring that leave policies are applied consistently.
- Conducting training to educate employees that harassment of their colleagues based upon their relationship to, or association, with an individual who has a disability is prohibited.
- Reviewing Employment Practices Liability Insurance (EPLI) Policies to confirm that coverage exists for violation of the association provision of the ADA.
Marc Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information, contact Marc at 301-657-0184 or [email protected].