A recent ruling by the California Court of Appeal highlights the need for extreme caution on a sensitive issue: the rights of an employee who is associated with a disabled person.
In Rope v. Auto-Chlor System of Washington Inc., the court gave a former employee of Auto-Chlor the green light to pursue a claim for associational disability discrimination. Scott Rope had requested paid leave to donate a kidney to his sister, but the company fired him before the organ donation occurred. He sued Auto-Chlor, and in October the appellate court let him move forward with his claim of associational discrimination in violation of the California Fair Employment and Housing Act (FEHA).
Companies need to take a number of measures to address this issue, according to employment attorneys. They should update their policies to clearly convey employees’ rights, carefully document any performance problems, avoid certain types of questions, and provide training for managers.
Background of Case
When Auto-Chlor hired Rope, on Sept. 7, 2010, he told the company that he planned to donate a kidney to his sister, and he requested unpaid leave for that purpose. On Sept. 30, 2010, California enacted the Michelle Maykin Memorial Donation Protection Act (DPA), which requires certain companies to provide up to 30 days of paid leave for organ donation. In November, Rope asked his employer for 30 days of paid leave for his kidney donation, which was scheduled to occur in February 2011.
According to the published ruling, Rope repeatedly asked Auto-Chlor to respond to his requests for paid leave, but his employer kept ignoring them. Rope also had notified the company that he might need more accommodations when he returned to work. In November 2010 the company’s HR department informed Rope that he could take unpaid leave for an unspecified period, but the employer didn’t respond to his requests for paid leave.
Rope received satisfactory performance reviews and had no disciplinary problems, the ruling notes. Nevertheless, his employer fired him on Dec. 30, 2010—two days before the DPA took effect. The purported reason was “poor performance,” according to the ruling.
Soon afterward, in February 2011, Rope donated a kidney to his sister. Later that year, he sued his former employer, alleging various causes of action—among them, violation of the DPA, and associational discrimination in violation of FEHA. The company filed demurrers, and the trial court ultimately dismissed the suit, but Rope appealed.
In its ruling, the appellate court affirmed the dismissal of the DPA claim, noting that the law hadn’t gone into effect yet. However, the court reversed the dismissal of several other causes of action, including the FEHA claim for associational discrimination.
“The reasonable inference is that Auto-Chlor acted preemptively to avoid an expense stemming from Rope’s association with his physically disabled sister,” the court said.
Message for Employers
Attorneys recommend several actions for companies to comply with relevant laws and reduce the threat of associational-discrimination lawsuits. Although the type of FEHA claim that Rope was allowed to pursue is relatively uncommon, it’s important to be proactive.
The DPA requires some employers to grant up to 30 days of paid leave in a one-year period for organ donation and up to five days of paid leave in a one-year period for bone-marrow donation. The law, which took effect in January 2011, applies to private employers with 15 or more workers.
“It’s another one of the different types of leaves that employers need to be aware of,” said Yvette Davis, an attorney at Haight Brown & Bonesteel in Irvine, Calif.
FEHA, which has been in effect for decades and applies to employers with five or more workers, prohibits harassment and discrimination in employment based on various protected categories. As part of this law, organizations can’t discriminate against an employee because of an association he or she has with a disabled person.
One key step is making sure employer handbooks are up-to-date and clearly explain employees’ rights. In the section on leave-of-absence policies, the handbook should inform employees that they may be eligible to take paid time off for organ and bone-marrow donation, said San Diego attorney Christopher Olmsted of Barker Olmsted & Barnier.
Any plans to deny requested leave should be carefully reviewed, either internally by HR or externally by a lawyer, according to Mark Meyerhoff, a Los Angeles attorney at Liebert Cassidy Whitmore.
DPA leave can’t run concurrently with leave extended under two other laws, the federal Family and Medical Leave Act and the California Family Rights Act, explained Mark Askanas, a San Francisco attorney at Jackson Lewis.
In addition, the nonharassment section of an employer’s handbook should include association as a protected category, Meyerhoff said.
One area that requires caution: taking adverse action against an employee who has requested leave under the DPA. The individual potentially could sue, alleging the action was discriminatory. The question that will arise is, “Why did the employer take this adverse action at this particular time?” noted Askanas.
Thus, it’s crucial that companies carefully document the reasons for any adverse actions.
“Anytime that an employer believes there is poor performance or an employee is engaging in misconduct, it’s extremely important to thoroughly document that,” Meyerhoff said.
“If there is a performance-related problem, the employer should be very careful about documenting what those issues are as the issues are occurring, not after the fact,” added Anthony Oncidi, an attorney at Proskauer Rose in Los Angeles.
In cases alleging associational discrimination, a potential defense is that the employer didn’t know that the employee was associated with a person in a protected category, Oncidi added. If the worker hasn’t disclosed that information to the employer and there’s no evidence that the employer knew of the association, then the employer can’t be responsible for discrimination, he explained. He advises companies to familiarize themselves with California guidelines on the questions that employers can legally ask workers and applicants. Organizations should avoid asking employees questions that are prohibited by these guidelines.
Meanwhile, managers should receive ongoing education and training on this topic, including an explanation of the concept of associational discrimination, according to Olmsted. Managers also should understand the need to document the legitimate business reasons for any adverse action, to try to avoid any inference of discrimination, Olmsted added.
Toni Vranjes is a freelance business writer in San Pedro, Calif.