I potentially have jury duty on Monday. It is hard to believe that I would be selected. However, Georgia has no exemptions for attorneys serving on juries. I think like most attorneys, I would love to have the opportunity to serve on a jury. On the other hand, attorneys are paid to persuade. Also, I spent 12 years in higher education teaching people how to be paralegals full-time. So, I am used to successfully demystifying information for people from all kinds of backgrounds. If I were the trial attorney, would I want me on the jury, I am not so sure. I have gone through the voir dire process twice (fender bender in Texas and capital murder in Illinois), and enjoyed the experience both times. There is a chance that I will not have to show up at all since it is spring break down here, and many attorneys may be trying to postpone their trials. Nevertheless, since my wife and daughter are out today for a while, I thought I would take the opportunity to get up a blog entry for the week since with jury duty and my daughter being on spring break, my schedule next week will be a bit all over the place.
At any rate, the case of the day deals with the question of association discrimination in employment. In particular, when it comes to association discrimination in employment, is it a general concern that has to be shown or are there specific boxes that you have to fall into in order to have a claim? This case goes along with a trend of cases in title I associational discrimination saying that you have to fit into one of the boxes. The case is a Second Circuit case Graziadio v. Culinary Institute of America, decided March 17, 2016. As is typical with my blog entries, I divided the blog entry into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.
In this case, the plaintiff was an employee of the Culinary Institute of America (the Culinary Institute of America, often called the CIA, which is actually not far from where I went to college at Vassar, though unbelievably I never took advantage of that opportunity to dine there), and took leave under the FMLA in order to care for her son suffering from diabetes. Additionally, a few weeks later she took leave under the FMLA when her son broke her leg. During the second term of absence, the CIA took issue with the paperwork supporting her leave and refused to allow her to return until she provided new documentation. Communication between the plaintiff and the CIA broke down, and the CIA ultimately fired her for abandoning her job. She sued for both interfering and retaliation under the FMLA as well as discrimination under the ADA. The court held that there were genuine disputes of material fact with respect to her FMLA interference and retaliation claims, but she failed to bring forth evidence supporting a claim of discrimination under the ADA. We are just going to focus on the ADA piece.
- Associational discrimination claims are rarely litigated.
- A prima facie case of associational discrimination in employment involves establishing: that the plaintiff was qualified for the job at the time of an adverse employment action; that she was subjected to adverse employment action; that she was known at the time to have a relative or associate with a disability; and that the adverse employment action occurred under circumstances raising a reasonable inference that disability of the relative or associate was a determining factor in the employer’s decision.
- In order for associational discrimination under the ADA to exist in employment it has to fit into one of the categories enumerated in Larimer v. International Business Machines Corp. Those categories are: “expense,” in which an employee suffers adverse action because of his association with a disabled individuals covered by the employer’s insurance, with the employer believes (rightly or wrongly), will be costly; “disability by Association,” in which the employer fears that the employee may contract or genetically predisposed to develop the disability of the person with whom he is associated; and “distraction,” where the employer fears that the employee will be inattentive at work due to a disability of the disabled person.
- The plaintiff’s claim could only arise under the “distraction,” possibility with respect to her caring for one of her son’s diabetes, and she produced no evidence that she was fired because the employer believed that she would be distracted by caring for that son. In fact, she was reinstated following her leave to care for that son.
- An ADA associational claim does not exist for the son who broke his leg because the plaintiff conceded that her son’s broken leg did not qualify as a disability.
- With respect to, “distraction” claims, the ADA does not provide a right for an accommodation in work schedule for an employee that is actually sufficiently distracted to fall into this associational discrimination category because the right to an accommodation being limited to employees with disabilities does not extend to a nondisabled associate of a person with a disability.
- For associational discrimination in employment, the case law is trending that the facts are going to have to fit into one of the categories discussed in this blog entry. That said, it isn’t clear to me why the ADA as a matter of statutory construction would demand that associational discrimination in employment must fit into one of these categories.
- Not sure I understand why the plaintiff so readily conceded that the broken leg was not a disability. After all, a temporary disability, as discussed in this blog entry, may be a disability under the ADA.
- Associational discrimination under the ADA will work differently with respect to the other titles, such as title II, as discussed in this blog entry of mine.
- While not a focus of this blog entry, this case is yet another example of how whenever you are dealing with the FMLA, the ADA is not far behind and must also be dealt with.