The “association” provision of the Americans with Disabilities Act is one of those rules the EEOC slipped in under the radar – until employees started suing over it.
At this point, most people understand the ADA well enough to know what constitutes discrimination against disabled employees and applicants, and most employers closely guard against violations.
Problem is, when you poke your finger in one hole in the ADA dike, another pops open. This time, it’s the association provision.
In summary, it’s intended to prevent employers from taking adverse actions against an applicant or employee based upon stereotypes and assumptions about people who associate with others who have disabilities.
For instance, it’s unlawful for an employer to refuse to hire an individual associated with someone with a disability based upon the assumption that the individual will be out of work frequently to care for the person with the disability. Note: Unlike the rules of FMLA, the ADA doesn’t require a family relationship for an applicant or employee to claim protection under the association provision.
Probably the best way to understand how to comply with the association provision is to run down the list of major violations and examples from court cases:
- Refusing to hire the best qualified applicant based on the belief that the applicant’s need to care for a disabled individual, such as spouse or child, will have a negative impact on the applicant’s work attendance and performance. In an interview, for instance, an applicant might bring up the disability of a family member. If that happens, move on immediately to the next question or discussion.
- Denying an employee an opportunity for promotion or advancement based on the assumption that the employee will be stricken by the same disease as a family member and therefore, will become unreliable at work. Some illnesses are hereditary or present a higher-than-average likelihood that they’ll be passed from one generation to another. Such a possibility cannot be the basis for workplace decisions.
- Denying healthcare coverage to an employee’s disabled dependent because it will lead to increased health insurance premiums when that coverage is provided to other employees’ dependents. There’s no gray area here; you can’t do it.
- Denying an employee other benefits and privileges of employment that are available to other employees based upon their association with a person with a disability. For example, if you allow employees to bring their children into work on special occasions (such as when child care is unavailable), you cannot place limits or special rules on employees who have disabled children they bring into work.
- Failing to address a complaint of a violation of the association provision. Complaints about association violations fall under harassment, and failing to address them quickly and properly will leave an employer open to the same liability as if the employer failed to address any harassment complaint.
- Refusing time off to care for an associated disabled person when company policy allows others time off for family-care reasons. For example, an employer can’t allow one employee to take a leave of absence for a certain personal or family reason, but deny another employee from taking a leave of absence to care for a disabled individual under similar circumstances.
For more examples on violations of the association provision, go to: http://www.eeoc.gov/facts/association_ada.html