"Smoking Gun" Comments Serve as an Important Reminder of the ADA’s Protection Against Associational Discrimination

Most employers are well aware that the Americans with Disabilities Act (ADA) protects qualified individuals with disabilities against discrimination on the basis of disability and requires employers to provide reasonable accommodations to employees with disabilities, if those accommodations do not pose an undue hardship for the employer. However, a recent court decision reminds employers that even individuals without disabilities may be protected from discrimination under the ADA due to their association with another person who has a disability.

In the recent decision, the employee worked as the sole receptionist in the admissions office for the employer school and was responsible for answering phone calls, meeting with new students, reviewing admissions paperwork, and generally serving as the first point of contact for prospective students and parents. During her six months of employment with the school, the employee arrived to work late 27 times, left work early 54 times, and was absent 17 days. Much of this time away from work was taken by the employee to care for her infant daughter who required hospitalization on multiple occasions for various respiratory issues. On various occasions, the employee informed her supervisor that she was absent because her daughter had low oxygen levels, had been hospitalized for pneumonia, and would have been diagnosed with asthma if she was older, but, as a child, her condition was referred to as reactive airway disease. When the employee was at work, she often stayed late — working past her regularly scheduled shift on more than 31 occasions.

The school eventually discharged the employee because her “job performance, attendance, attitude and behavior were consistently unsatisfactory.” However, according to the employee, other than a reprimand for arriving six minutes late to work and an instruction not to wear jogging attire to work, she had not received any discipline prior to her termination. Additionally, during the termination meeting, the employee’s supervisor allegedly told her that he was “letting her go” because he needed someone without children to work at the front desk at all scheduled times. 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?”

Following the employee’s termination, she filed suit against the school, her supervisor, and another school official, claiming that the school discriminated against her and terminated her employment because of her association with an individual with a disability, in violation of the ADA and New York state law. In response, the school asked the court to dismiss the employee’s suit and grant judgment in its favor. According to the school, it was not aware that the employee’s child had an ADA-qualifying disability. Moreover, the school argued that the employee’s performance had been unsatisfactory, had not improved despite repeated counseling, and ultimately, resulted in her termination.

Despite the employee’s largely undisputed attendance and work attire issues, the court refused to dismiss the case and, instead, determined that the case should proceed to trial. In doing so, the court rejected the notion that the school was not aware of the employee’s child’s disability and noted that the employee had multiple communications with her supervisor about the child’s illness and reactive airway disease. With respect to the issue of discriminatory discharge, the court concluded that the supervisor’s comments to the employee (i.e., needing someone without kids to work at the front desk, the inability to guarantee that her daughter would not get sick again, etc.) could easily be viewed as “smoking gun” statements, indicating that the supervisor believed that the employee’s daughter would be frequently ill and that the employee’s termination was connected to her association with her disabled child.

The case highlights several issues that employers would do well to keep in mind:

• First, the ADA’s protections are not limited to solely persons who have disabilities themselves; it also protects caregivers and other persons who are associated with a person with a disability. These protections are separate from, and in addition to, any rights or protections such persons might otherwise have under the Family and Medical Leave Act and should be given consideration any time disciplinary action is contemplated, particularly where issues of a family member’s illness or other health condition has been raised by the employee.
• Second, the importance of documenting disciplinary action (including verbal counseling) cannot be overstated. Indeed, a lack of supporting documentation showing repeated disciplinary action only assists the employee in the event of a dispute about such discipline.
• Third, as evidenced by the court’s comments, employers must keep in mind that a single inappropriate comment during a termination or disciplinary meeting can create significant problems in an otherwise well-documented, performance-based case. Consequently, human resources and supervisors must be trained about what to say and what not to say during disciplinary and termination meetings. In addition, it is often a good idea to prepare talking points in advance of such meetings and to consult with counsel regarding any anticipated “trouble spots” in advance to ensure that the discussion stays on track.