Even as things come back to “normal” (or the “new normal”), the lingering effects of the COVID-19 pandemic will long be felt. One of those effects is the number of charges of discrimination and corresponding litigation being filed by employees who had to care for family members during the pandemic. Consider this scenario:
The COVID-19 scenario above – one of what will assuredly be an infinite variety – is a good reminder of a provision of the Americans with Disabilities Act (ADA) that prohibits discrimination on the basis of association. Specifically, the ADA says that disability discrimination may consist of “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 provision is not frequently invoked, but a recent case serves as a good compliance reminder. On June 25, 2021, the U.S. Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) declined applying the “association” theory to a Florida state law prohibiting disability discrimination on the basis of association (Carolina Rose Matamoros v. Broward Sheriff’s Office, No. 19-13448), but expressly cited the “association” provision of the ADA as a viable basis for employees to allege discrimination. The case is a good reminder that employers must think about more than the individual employee. Federal law also extends to those with whom the employee is associated.
So what is an employer to do?
The scenario and case above is just another example of the need for employers to be aware that employees face challenges at work when trying to meet the needs of an individual with a disability with whom they may be associated or with whom they have a relationship. And employers cannot simply dismiss these considerations because the ADA’s legal protections extend beyond employees that suffer from disabilities.