Suppose your employee tells you that his/her child has a severe neurological impairment that may occasionally require leaving work early to care for the child. Suppose the employee is still able to perform his/her job. Would you demote the employee based on the child’s diagnosis? What if you’re concerned that your employee won’t be as focused on the job as s/he once was? Then can you demote the employee? If your employee asks for some shorter shifts for a few days can you deny the request? If so, can you discipline the employee for missing work due to the child’s hospitalization and ultimately terminate him/her? I hope you wouldn’t do any of these things to your employee. You can probably guess that I have a specific case in mind where an employer did exactly that and it doesn’t look like it’s going to end well for that employer.
The case is Kelleher v Fred A Cook, Inc. No. 18-2385 (2nd Cir. Sept. 24, 2019). In addition to the above, here’s what went down: Mr. Kelleher’s daughter was born in 2014 with a neurological impairment, ultimately diagnosed as Rett Syndrome. Mr. Kelleher began work at Fred A Cook, Inc as a Laborer and Operator, and a few months later, after receiving positive performance reviews, received a promotion to CCTV Truck Operator. A month later, Mr. Kelleher told his employer about his daughter and that there might be times he would need to rush home to care for his daughter. He then noticed that his relationship with his employer began to go downhill. He was soon ordered to work “in the shop”, while his co-workers were handled other work at a higher wage. He was also told he could not leave right at the end of his shift to care for his daughter, and that workers were expected to punch out, and remain on site in case of emergencies and that doing so “did not affect his job responsibilities”. The company denied his request to work 8-hour shifts for one week instead of the usual 10-12 hour shifts and told him that his problems at home “were not the company’s problems” and that he would not be receiving a raise.
The next day, (a Saturday) Mr. Kelleher’s daughter was hospitalized after suffering a near-fatal seizure, and he notified his employer he would not be able to work on Monday. When Mr. Kelleher returned to work on Tuesday, he found himself demoted from an Operator (where he ran controls on trucks) to a Laborer, where his main responsibility was shoveling sewer systems, a less prestigious position. Not long after his demotion, Mr. Kelleher again requested 8-hour shifts so he could visit his daughter in the hospital. The company denied that request. About 2 and a half weeks later, he was 15 minutes late to work and he was told to go home, that he would be called if his services were required. A month later he received a letter — dated one month prior–informing him that he was terminated. Mr. Kelleher filed a charge with the EEOC and upon receiving a right to sue letter sued for discrimination under the ADA. The US District Court dismissed his claim. On appeal, the 2nd Circuit reversed, thereby reviving it.
Now, you might well sympathize with Mr. Kelleher, but be wondering, “Where is the disability discrimination claim?”. He is not disabled, so he wouldn’t be entitled to a reasonable accommodation would he? For that matter, if he is not disabled, how could he allege discrimination? Yes, Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities, but it also 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). This type of claim is known as an associational discrimination claim. To state such a claim under the ADA, one 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.
While a nondisabled person associated with a disabled person is not necessarily entitled to a reasonable accommodation, the 2nd Circuit noted that 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.” The Court felt that the supervisor’s statement that Mr. Kelleher should leave his personal problems at home after his request for one week of shortened workdays supported his claim that his firing was motivated by associational discrimination. I do want to note some other points, though. It so happens that Mr. Kelleher was not entitled to FMLA leave, as he hadn’t worked for the company long enough. If he had been there longer, the company’s actions would likely have violated the FMLA, as Mr. Kelleher would have been entitled to at least intermittent FMLA. Mr. Kelleher worked in New York State. His hiring and firing occurred before the New York Paid Family Leave Act took effect. Had it happened now, his employer would have been in even more hot water, as its actions would have violated the NYPFLA. OK, this case leaves us with a few takeaways:
- Discriminating against an employee based on his/her association with a disabled person is also prohibited under Title I of the ADA;
- While you may not have to provide a reasonable accommodation to an employee seeking to care for an associate with a disability, denial of such a request can still support a discrimination claim;
- An employee who has worked for your company for at least 12 months or 52 weeks and for 1250 hours in the preceding year may be entitled to the schedule modification Mr Kelleher requested as intermittent FMLA;
- An employee may be entitled to paid time off to care for a disabled child if s/he works in a state with paid Family/Medical leave, and/or under some states’ paid sick leave laws.
- This employer is paying dearly for its mistake. It is paying expensive legal fees and will have to pay a significant amount either to settle this case or risk a hefty jury verdict. Allowing the employee some time to visit his daughter in the hospital or occasional early dismissals to care for his daughter would probably have cost far less.
OK, I think we all get the point, so I’ll end here for now. See you next week!
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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