by Association-based employment discrimination occurs when an employer makes a job decision based on the protected characteristic of someone with whom an employee or applicant has a relationship.
Claims of association-based discrimination most often come under the Americans with Disabilities Act (ADA). The ADA has specific language that prohibits an employer from discriminating against an applicant or employee because of the known disability of an individual with whom the employee is known to have a relationship or association. For example, an employer would likely be subject to a claim of association-based discrimination if it refused to hire someone because the applicant’s spouse has HIV. HIV is considered a disability under the ADA, and failing to hire someone because they live with someone with the disability could lead to a claim of discrimination.
Usually claimed in situations where a family member of the applicant or employee has a disability, the law 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 Equal Employment Opportunity Commission (EEOC) provides guidance for employers: https://www.eeoc.gov/laws/guidance/questions-answers-association-provision-ada .
To establish an initial case (known as a prima facie case) of associational discrimination under the ADA, the employee or applicant must show that:
- they were qualified for the job at the time of the adverse action;
- they were subjected to an adverse action (e.g., denied a job or promotion; received disciplinary action; fired; etc.);
- they were known by their employer to have a relative or associate with a disability; and
- the circumstances around the adverse action suggest a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision.
If a claimant can establish evidence of these factors, the employer will have the burden of disproving one or more of the factors or showing that there is a business reason, unrelated to the employee’s associations, for the actions taken.
Courts have recognized three of the most common situations where an employee or applicant may bring a successful claim of associational discrimination under the ADA: (1) discrimination based on the cost of health care, when an employee’s relative has a disability that is costly to the employer because the relative is covered by the employer’s health insurance plan; (2) discrimination based on fear of infection, when an employer acts in fear that the employee may become infected with a disease because of the known disease of an associate of the employee; and (3) discrimination based on employee distraction, when the employer assumes the employee is or will be inattentive at work because the employee provides care for someone with a disability.
Employers should also consider state laws prohibiting associational discrimination. State laws sometimes prohibit associational discrimination for protected classes of people other than those with a disability. For example, the Minnesota Human Rights Act (MHRA) prohibits reprisal against an employee because the person is “associated with a person or group of persons who are disabled or who are of different race, color, creed, religion, sexual orientation, or national origin.” Prohibited reprisal includes adverse actions covered in ADA compliance but expands to include things like informing a prospective employer of the employee’s legally protected association when providing references or other communications.
Employers can avoid association-based discrimination claims by regularly including the topic in the anti-discrimination training to managers and human resources personnel.
