ADA Associational Disability Claim Advances

By Jeffrey Rhodes October 16, 2019
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ADA Associational Disability Claim Advances

An employee whose daughter was disabled had no right to a scheduling accommodation, but the employer's refusal to tolerate his minor attendance infractions supported his Americans with Disabilities Act (ADA) claim, the 2nd U.S. Circuit Court of Appeals ruled.

In November 2014, the plaintiff began working for Fred A. Cook Inc. as a laborer and operator. The plaintiff received favorable performance reviews, and in February 2015, he was promoted to CCTV truck operator. The plaintiff's daughter had been born in May 2014 with Rett Syndrome, a severe neurological disorder that affects the ability to speak, walk, breathe and eat, among other things. The condition was not fully diagnosed until 2016; up to then, she appeared to have epilepsy.

In early March 2015, before his daughter's Rett Syndrome was diagnosed but while she was showing the symptoms, the plaintiff first told one of his supervisors that his daughter had a serious medical condition and that he may have to occasionally rush home to help care for her.

After this conversation, the plaintiff's relationship with the company deteriorated, and he was directed to work in the shop while his co-workers handled other work at a higher wage. In March 2015, the plaintiff's supervisors advised him that he could not leave work immediately after his shifts to care for his daughter because he was expected to remain onsite in case of an emergency. The plaintiff alleged that although the company expected employees to remain onsite after clocking out, that was not one of his formal job responsibilities.

During the meeting with his supervisors, the plaintiff asked to work eight‐hour shifts for one week (instead of 10‐to-12-hour shifts) in order to attend to his daughter. He was told that "his problems at home were not the company's problems," and he would not receive a raise.

The next day, a Saturday, the plaintiff's daughter had a near‐fatal seizure and was taken to the hospital. The plaintiff told his supervisor that he would be unable to work the following Monday. When he arrived at work on Tuesday, the plaintiff learned that he had been demoted to a laborer position, in which his chief responsibility involved shoveling sewer systems.

At some point after the plaintiff's demotion, he again requested eight‐hour shifts. The request was denied. On April 16, 2015, two and a half weeks after the day of work he missed for the hospital visit, the plaintiff arrived to work 10‐15 minutes late. He was told to go home and that he would be called if his services were required. A month later, the plaintiff received a letter (dated a month earlier) informing him that he had been fired.

After obtaining a notice of right to sue from the Equal Employment Opportunity Commission, the plaintiff filed his complaint in federal court alleging that his termination violated the ADA. The district court dismissed the plaintiff's complaint because he did not allege that he was fired because his employer felt he would be distracted at work; instead, he alleged that he was unable to be at work for the entire workday, including after the end of his shift, as the company required.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

On appeal, the 2nd Circuit acknowledged that the plaintiff was not entitled to a reasonable accommodation as an employee associated with an individual with a disability under the ADA. The company contended that this defeated his claim because he admittedly requested a scheduling accommodation. But the court found that the plaintiff's request was not an admission of inability to perform the essential functions of his position without shorter shifts.

The court acknowledged that an employer is not required to be tolerant of small, isolated infractions or of common workplace behavior, such as leaving after one's shift. While such conduct may, over time, impair performance in a way that ultimately renders the employee unqualified, these isolated infractions do not, as a matter of law, automatically render the plaintiff unqualified for employment.

The court thus found that the plaintiff had stated sufficient facts to potentially support an ADA associational disability claim, and it reversed the district court's dismissal of his complaint.

Kelleher v. Fred A. Cook Inc., 2d Cir., No. 18-2385 (Sept. 24, 2019).

Professional Pointer: Even when an employer is not required to reasonably accommodate an employee with a family member who has a disability, the employer should not express an intolerant attitude toward the employee. Doing so may show discriminatory motive that could support the employee's associational discrimination claim.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Americans with Disabilities Act.]

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