2d Circuit Overturns Dismissal of ADA “Associational” Disability Discrimination Claim

In a recent decision, Kelleher v. Fred A. Cook, Inc., 18‐2385, 2019 WL 4616715, the Second Circuit held that plaintiff sufficiently alleged a claim for “associational discrimination” under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), and vacated the lower court’s decision dismissing the complaint.

Here, Plaintiff alleged that he was fired because his employer assumed that he would be distracted by his daughter’s serious disability (Rett Syndrome).

The court summarized the law (paragraphing/formatting altered; citations omitted) as follows:

The ADA prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4).

To state a claim for associational discrimination under the ADA, a plaintiff must allege:

1) that she was qualified for the job at the time of an adverse employment action;

2) that she was subjected to adverse employment action;

3) that she was known at the time to have a relative or associate with a disability; and

4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.

One scenario that may support an inference that the adverse employment decision was motivated by associational discrimination is “distraction”: the employer’s fear[ ] that the employee will be inattentive at work due to the disability of the disabled person.

Defendant asserted that plaintiff’s requests for an accommodation to attend to his daughter and his attendance (missing one day of work, arriving 15 minutes late on another, and leaving immediately after his shifts) should result in dismissal of his claim. It cited plaintiff’s request, along with his abseenteism, as proof that he was unable to perform his job without an accommodation.

The court rejected this argument, explaining:

The Company contends that Kelleher’s request for an 8-hour shift defeats his claim because he is not entitled to an accommodation under the ADA. But the argument is confused: Kelleher’s request is not an admission of inability to perform the essential functions of his position without shorter shifts. And while Kelleher’s allegations acknowledge one missed one day of work, one 15-minute late arrival, and a tendency to leave immediately after his shifts, those allegations do not render his claim as to his qualification for the job implausible. Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination. Thus, in this case, Cook’s demand that Kelleher “leave his personal problems at home” after Kelleher requested one week of shortened workdays supports Kelleher’s claim that his later termination was motivated by associational discrimination.

Plaintiff’s complaint, held the court, satisfied the fourth element of an associational discrimination claim, namely, “an inference that the disability of the plaintiff’s relative or associate was a determining factor in the employer’s adverse action.”

The court cited plaintiff’s allegation that he “was told that ‘his problems at home were not the company’s problems’ …, and he was effectively demoted after he missed a day’s work to care for his daughter”, finding that “[t]hese allegations provide all that is needed to raise a minimal inference that Kelleher’s employer thought that Kelleher’s daughter was a distraction, and concern over distraction was a ‘determining factor’ in Kelleher’s termination.”

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