Associational Discrimination Could Not Be Established

By Allison R. Musante November 24, 2020
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grandson helping grandfather

​An employee could not prove associational discrimination based on his grandfather's disability when the employer made ample efforts to accommodate the employee's need to care for his grandfather and the employee did not suffer an adverse employment action, the 7th U.S. Circuit Court of Appeals ruled.

The plaintiff began working for the company as a chemist in 2011. He performed well and received promotions and positive performance evaluations until 2015, when his grandfather was diagnosed with liver cancer. The plaintiff then asked his supervisor for a modified work schedule so that he could care for his grandfather.

After six months, the plaintiff's supervisor told him that his work had suffered and that he would need to return to his regular schedule. When the plaintiff said he needed one day off per week to help his grandfather, the company offered an alternate schedule, but the plaintiff rejected that because it conflicted with his continuing education. Ultimately, the company's HR department approved a one-day-per-week leave.

According to the plaintiff, after he began this leave, his supervisor began harassing him by belittling him in front of co-workers and refusing to give him research and development work, on which the plaintiff's bonus depended. The plaintiff complained to HR, but eventually asked for a full-time leave due to stress and anxiety. The company granted this request effective March 30, 2016, and the plaintiff stayed on leave for six months, after which he was given short-term and then long-term disability leave. On March 28, 2017, a year after his leave began, the company contacted the plaintiff to ask when he would be returning to work and explained that if he did not respond by the end of the following week that he would be terminated. The plaintiff never responded; two weeks later, the employer terminated his employment.

On March 28, 2016, shortly before the plaintiff started his full-time leave, he filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging the company had discriminated against him based on his grandfather's disability and retaliated against him for complaining to HR. He subsequently sued the company after his termination, alleging discrimination in violation of the Americans with Disabilities Act (ADA) based on his association with his grandfather and claiming that the company had retaliated against him for filing complaints with HR and the EEOC.

The district court granted summary judgment for the employer, and the 7th Circuit affirmed. In doing so, the 7th Circuit explained that the ADA prohibits discrimination based on the known disability of an individual whom the employee has an association or relationship with under various theories, including the distraction theory—where the employee is not attentive at work because he is distracted by his or her relative's disability—alleged by the plaintiff. The 7th Circuit, however, held that the plaintiff in this case had not presented any evidence that he was distracted at work or that the company viewed him as being distracted.

The plaintiff also could not establish any other theory of associational discrimination because the company had made repeated efforts to accommodate the plaintiff's need to care for his grandfather, including allowing him to work an alternate schedule.

The 7th Circuit further held that, even if the plaintiff could prove some form of associational discrimination, he had not suffered an adverse employment action because, among other things, the complaints the plaintiff made about his supervisor involved just "general rudeness," which did not rise to the level of an adverse employment action.

The 7th Circuit also stated that although the plaintiff's leave affected his bonus—as he did not receive a bonus for the time he was on leave—the plaintiff did receive a bonus for the time he was working. Therefore, a "hypothetical loss of potential future bonuses" did not amount to an adverse employment action.

The appellate court also rejected the plaintiff's argument that he was adversely impacted by not being given as much research and development work, specifying that the plaintiff "remained in the same job position, in the same department and at the same desk." Although he did have a shift in job responsibilities, he was still performing work he did prior to his grandfather's illness. Therefore, this shift in responsibilities did not constitute an adverse employment action.

Finally, the 7th Circuit rejected the plaintiff's retaliation claim based on the filing of his EEOC charge, holding that because this claim was not in his EEOC charge and that charge was never amended, he could not pursue this theory in court. In addition, the appellate court indicated that the record clearly showed the company had contacted the plaintiff to see when he would be returning to work and gave him a deadline to respond. The 7th Circuit stated that the "only possible conclusion" was that it was the plaintiff's failure to respond that led to his termination, not any retaliation for his complaints.

Pierri v. Medline Industries Inc., 7th Cir., No. 19-3356 (Aug. 6, 2020).

Professional Pointer: This case illustrates the types of associational discrimination claims that can be made. If an employee is being distracted by an associate's disability, that can serve as a basis for a claim, even if the employee himself or herself does not have a disability.

Allison R. Musante is an attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer, the Worklaw® Network member firm in Beverly Hills, Calif.

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