by Chris Richardson

On February 27, the Seventh Circuit handed down a decision that will bring new attention to the lightly litigated, but significant, “association” provision of the Americans With Disabilities Act (ADA). Title I of the ADA not only protects qualified individuals with a disability against employment discrimination, but also protects applicants and employees from discrimination based on their relationship or association with an individual with a disability.

In Dewitt v. Proctor Hosp., Phillis Dewitt, a nurse manager with an excellent employment record, was nevertheless terminated by an Illinois hospital allegedly due to escalating medical costs from her husband’s cancer. When Ms. Dewitt’s husband’s medical claims started showing up in quarterly reports highlighting claims over $25,000, Ms. Dewitt’s supervisor began confronting her about the costs, even suggesting that Ms. Dewitt consider less expensive hospice care for her husband. The Seventh Circuit, partially reversing a lower court decision, held that Ms. Dewitt could pursue a claim for “Association Discrimination” under the Americans with Disabilities Act.

Under the court's ruling, a plaintiff without direct evidence of association discrimination can establish their case by providing evidence that:

(1) they were qualified for the job;

(2) they were subjected to an adverse employment action;

(3) they were known by the employer at the time to have a relative or associate with a disability; and

(4) their case falls into one of the three categories.

Those categories for a plaintiff asserting association discrimination are: (1) expense claims, which is when an employee was subjected to adverse action because his or her family member has a costly disability; (2) disability by association claims in which an employer fears a possible threat of an employee’s disabling condition spreading to other workers; and (3) distraction claims, in which the disabled employee is distracted from his or her work.

When dealing with an employee who is “associated” either through familial relations or otherwise with someone who has incurred high medical expenses on the employer’s health insurance, employers should avoid repeated inquiries to the employee that seem interested in both the employer’s financial situation and that disabled person’s condition.

Further, employers should not attempt to sit in the place of doctors and “advise” employees with sick family members, relatives, or otherwise that they should pursue cheaper care. Such a suggestion, while seemingly well-intended, can potentially be evidence that an employee, if later terminated, suffered an adverse action on the basis of a family member’s disabling condition and an employer’s financial situation. Further, it may appear unsavory if your association discrimination case were to come before a jury.