The Reasonable Accommodation Dilemma For Associational Discrimination

One of the many downsides to the current pandemic is that so many people have exhausted their family leave taking care of themselves as well as sick family members.  The non-COVID-19-related issues of families have not gone away, however.  Who is taking parents to chemo treatments?  Who is taking spouses to physical therapy?  How do employees and employers deal with these issues?  If family leave is no longer an option, employees may turn to associational discrimination and reasonable accommodation of associational discrimination if they are denied time off to take care of family members.

Associational discrimination is an infrequently litigated issue.  The concept underlying the cause of action is that an employee is discriminated against because of their association with someone from a protected category.  In Bukiri v. Lynch, 2015 WL 13358192 (C.D. Cal. 2015), the court acknowledged that the American with Disabilities Act (ADA) defines discrimination to include discrimination by association, which means 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.  Id. at *3.  To establish a prima facie case, an employee must establish:

1.         the employee was subjected to an adverse employment action;

2.         the employee was qualified for the job at that time;

3.         the employer knew at the time that the employee had a relative with a disability;

4.         the adverse employment action occurred under circumstances that raised a reasonable inference that the disability of the relative was a determining factor in the employer’s decision.

Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). 

The court in Bukiri, however, made it clear that the reasonable accommodation requirement of the ADA does not apply to an association claim citing to 29 C.F.R. § 1630.8 Appendix (“[A]n employer need not provide . . . [an] employee without a disability with a reasonable accommodation because that duty only applies to qualified . . . employees with disabilities.  Thus, for example, an employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for a spouse with a disability.”)  Bukiri, 2015 WL 13358192 at *4; Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 336 (7th Cir. 2012)(employers are not required to provide reasonable accommodations to non-disabled workers).

While there is no duty to reasonably accommodate associational disability under the ADA, California might require reasonable accommodation under these circumstances.  In Castro Ramirez v. Dependable Highway Express, Inc., 246 Cal. App. 4th 180 (2016), vacated 2 Cal. App. 5th 1028 (2016), the court originally held that the definition of disability includes associated persons.  Thus, the association itself becomes the disability and since the associated person is also disabled, under the Fair Employment & Housing Act (FEHA) the employer has a legal obligation to accommodate an employee with an associational disability.  In Castro-Ramirez II, the California Court of Appeal vacated its earlier opinion by holding that the issue is unsettled merely because it was not directly before the court.

While no California court has since opined on the duty to reasonably accommodate associational disability, a federal court recently adopted the reasoning of Castro-Ramirez.  In Castro v. Classy, Inc., 2020 WL 996948 (S.D. Cal. 2020), the court noted that the FEHA defines a physical disability as including a person that is associated with a person who has, or is perceived to have, any of those characteristics.  Id. at *4 citing Cal. Gov’t. Code § 12926(o).  The court concluded that the definition of disability, which includes an associated person, applies not only to discrimination, but also to reasonable accommodation, and refused to dismiss the reasonable accommodation cause of action under the FEHA.

The takeaway for employers is that an employer must tread carefully when employees request an accommodation to take care of relatives or other associated people who have a disability.  While it is clear there is no obligation to accommodate under federal law, California and its employee friendly environment seems on the precipice of recognizing such a duty.  Thus, the best advice to employers is to engage in an interactive process to determine if an accommodation can be offered that does not create an undue hardship.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The firm is not responsible for inadvertent errors that may occur in the publishing process. 

©2021 Atkinson, Andelson, Loya, Ruud & Romo

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