I have written a couple of times about associational discrimination as you can find here and here. What is associational discrimination you ask? Basically it is when and employee suffers some job discrimination because of their association with someone who is protected. This protection is received under Title VII of the Civil Rights Act of 1964; the Family and Medical Leave Act; and the Americans with Disabilities Act (ADA). This last area is the subject of today’s post.
Sick baby equals bad attendance
Everyone knows that a sick child can cause attendance problems. But what if the attendance record looked like this:
During her six months of employment
- the employee arrived to work late 27 times,
- left work early 54 times, and
- was absent 17 days, and
- worked late 31 days
What would you do with this employee? Most employers would probably terminate the employee. In fact many would not have let her go this long. But what if this attendance problem was caused by a newborn that had a disability that required frequent medical attention and hospitalization? Would this change the way you dealt with this employee? Toss in that she often came to work dressed more casually than required.
According to attorney Carmen Couden of Foley & Lardner, LLP, these are the circumstances that led to the termination of this employee and the filing of a lawsuit for an ADA violation on the part of the company. The ADA violation is associational discrimination. The child had a disability termed reactive airway disease. Although the mother did not have the disability she suffered a job action due to her caregiver responsibilities. The company claimed her “job performance, attendance, attitude and behavior were consistently unsatisfactory.” Naturally the employee did not agree with this. The company claimed they did not know of the disability, but as facts later revealed that was not true.
Mistakes were made
With the attendance record listed above many employers might have made a similar decision and might have made similar mistakes. According to Couden, the biggest mistake made was by the employee’s supervisor who made the comment to the employee that he needed an employee “without children to work at the front desk at all scheduled times.” Couden writes “When the employee asked for another chance, her supervisor asked her how she could guarantee that her child was not going to be sick again, and said ‘so, what is it, your job or your daughter?’” I am sure many of you in HR cringed with that statement, but it shows that the employer, in the form of her boss, knew about the child’s condition.
The employer also made the mistake of not documenting her performance. They claimed, according to Couden, “that the employee’s performance had been unsatisfactory, had not improved despite repeated counseling, and ultimately, resulted in her termination.” However, they could not provide the documentation to back up their claim.
So with those facts a judge has signed an order allowing the case to proceed to trial on the basis of associational discrimination.
There are several lessons learned from this example.
- Associational discrimination is a real thing. Go back and read my post called Association Is Not A Protected Category or Is It? in order to get a better understanding. The EEOC has a document called Family Responsibility Discrimination to inform employers of just such situations.
- As Couden points out, the lack of documentation is a significant roadblock to a company successfully defending itself. If you counsel an employee there had better be some record of it. If you have the required interactive discussion with an employee make sure there is some record of it. Some record of reasonable accommodation and inability to perform the essential functions of the job might have saved this company a trial.
- It is absolutely necessary to train supervisors in what can and cannot be said. This supervisor doomed the company with his choose between your job or your child statement. Even companies with large HR departments don’t do a good job of training supervisors. Small companies with a part-time HR function certainly don’t do any training.
As Couden suggests seeking the help of your legal counsel before you step into “pile” would be helpful. I would also suggest seeking the help of a good HR consultant before you have to go to your legal counsel would also be a good solution.
Thanks to Carmen Couden, Esq. for her blog post that inspired me to revisit this topic.
Image courtesy of David Castillo Dominici at FreeDigitalPhotos.net