Can an employer terminate an employee out of a belief that the employee is too distracted from his job duties due to caring for a relative with a disability? That was the issue in the recent case, Kourimihelakis v. Hartford Fire Ins. Co., 30 AD Cases 1349 (D. Conn. 2014). “Associational discrimination” is seldom alleged by plaintiffs suing for disability discrimination under the Americans with Disabilities Act (ADA). The “distraction” theory of associational discrimination is even rarer. Yet, in this case, an employee who was occasionally late to work due to caring for his ailing father successfully pursued a distraction claim for associational discrimination.
Care for father causes occasional tardiness at work
The employee worked as a sales consultant for Hartford Insurance Company. He held an exempt position and was regularly scheduled to work from 9am to 6pm with a one-hour lunch period from 1pm to 2pm. As an exempt employee, the company’s tardiness policy did not apply to him. After his father suffered a debilitating stroke, the employee assisted in the care of his father and periodically was unable to be at work by 9am.
The employer wrote up the employee for being late, despite the fact that its tardiness policy did not apply to exempt employees. When the employee requested flex time hours under the flex time policy, his requests were denied.
On one particular day, the employee was approved to take four hours of personal time to care for his father. The employee arrived at work at 1:26 p.m. – 26 minutes late, but during the employee’s one-hour lunch period. The company considered the employee to have been late and terminated his employment.
Termination prompts “associational discrimination” lawsuit
The employee sued for associational discrimination, claiming that the employer discriminated against him in violation of the ADA because of the known disability of his father. The court recognized that the ADA specifically prohibits employers from taking adverse employment actions “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”
An associational discrimination claim like this one has four elements: (1) the employee was qualified for the job at the time of the adverse employment action; (2) the employee was subjected to adverse employment action; (3) the employee was known by his employer at the time to have a relative or associate with a disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.
The court expanded on the fourth element, recognizing that “distraction” could be one type of situation covered by the ADA’s association provision. The distraction theory can apply when “the employee is somewhat inattentive at work because his [relative] has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation.” The court also noted that the Equal Employment Opportunity Commission’s ADA guidelines provide that “an employer may not make decisions based on the ‘belie[f] that the [employee] would have to miss work’ in order to take care of a disabled person.”
Applying these principles to the lawsuit against Hartford Insurance, the court found that the employee had stated a plausible claim for associational discrimination under the distraction theory. The employee alleged that his father was disabled, that he regularly was required to care for his father, that he periodically was unable to report to work on time due to his duties in caring for his father, that the employer was aware of his father’s disability and that this was the reason for the employee’s tardiness, that the employee made requests to change his work hours but his requests were denied, and that he was terminated because of the known disability of his father. The court found that these allegations supported a reasonable inference that the company’s decision to terminate the employee was based on a belief that the employee would have to miss additional time at work in the future in order to take care of his disabled father.
Missing from the employer’s defense
Noticeably absent from the facts presented to the court was any evidence that the employee’s work performance was below par due to his occasional tardiness. There was no evidence of any discipline to the employee for poor performance. The only discipline in the record was based on the employee being late under a tardiness policy that did not apply to him. To support the termination, the employer needed to have evidence of a performance problem. Also missing from the employer’s case was evidence of any accommodations to the employee. If the employee performed satisfactorily as the evidence indicated, some sort of accommodations to the employee for his care of his disabled father might have offset what appeared to be a harsh termination decision.
Notwithstanding the evidence missing from the employer’s defense, this case illustrates the evolving nature of employment law and the need to consider how an employer’s actions may appear in a court of law.