A recent case out of the Southern District, Toombs v. N.Y. City Housing Authority, 16-CV-3352 (March 27, 2017) deals with a claim that is not often seen: discrimination on the basis of association with a person with a disability. Toombs was brought under the ADA, which prohibits:
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;
How does this work? It seems to me that this kind of claim presents significant challenges. It’s a given that virtually all discrimination claims are based on circumstantial evidence. By default, one assumes that the McDonnell Douglas paradigm is going to be applied. What would create “an inference of discrimination” in terms of disability association discrimination?
That question was answered by the Second Circuit in Graziadio v. Culinary Institute of America, 817 F.3d 415 (2d Cir. 2016), which borrowed from Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004). These cases hold that there are three “theories” that can give rise to a claim of associational discrimination (in the ADA context.)
1) “expense,” in which an employee suffers adverse action because of his association with a disabled individual covered by the employer’s insurance, which the employer believes (rightly or wrongly) will be costly; 2) “disability by association,” in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) “distraction,” in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person.
Where did these theories come from? Why these theories? These but not others?
There is nothing wrong with the above theories, but I am troubled by the idea that a particular type of discrimination must fit into one of three conceptual pigeonholes, judicially created, simply by fiat. The prohibition against disability associational discrimination is a creature of statute, and the statute prohibits discrimination, presumably in whatever form it is found. This rigid approach is contrary to the frequent reminder that the McDonnell Douglas paradigm is a flexible standard. There is nothing flexible about the rule adopted in Graziadio.
I have little doubt how the theories discussed in the Larimer decision came to be. The Court was trying to conceive of fact patterns that would constitute disability association discrimination. In a “traditional” discrimination case that relies on circumstantial evidence, the fourth part of the McDonnell Douglas test is satisfied when the position is filled by an individual outside plaintiff’s protected class. As protected classes become more and more specialized (e.g., 58 year old Samoan transgender), the fact that the plaintiff was replaced by somebody outside the protected class can have little or no evidentiary value. In the context of a disability association discrimination case, it would not be suspicious that an employee with a disabled dependent was replaced by an individual who was not associated with a disabled person. Common experience tells us that this does not raise the stink of discrimination.
I have no doubt that the Second Circuit would have little trouble recognizing other fact patterns that suggest disability association discrimination, should it be confronted with such a pattern. In Toombs, the plaintiff, whose son had severe disabilities and medical needs, was denied a transfer to a location closer to home so that she could respond more quickly to an emergency regarding her son. Toombs argued that she should have been provided a “reasonable accommodation” on account of her son, and the denial of that accommodation was a form of disability association discrimination. This argument was rejected by the Court, because plaintiff’s case did not present one of the theories recognized by Graziadio, and because the ADA entitled reasonable accommodations only disabled employees.
Could the facts in Toombs have supported a claim of disability association discrimination? Can the failure to provide an accommodation constitute discrimination absent an explicit statutory imposition of an obligation to accommodate? I think the argument would be worth making in the right case. A more “traditional” argument might have been available in Toombs. Did the employer have a policy regarding transfers? If the employer’s policy gave preferences to employees who met certain qualifications, I can see an argument that not including the need to care for a dependent with a disability as a qualification “excluded” a qualified individual within the meaning of the ADA. Toombs was decided on a motion to dismiss, therefore the facts were limited to the allegations of the complaint.
A close relative of association discrimination is retaliation against an employee for the actions of another person. In Velez v. Frion Realty Corp., 300 A.D.2d 103 (1st Dep’t 2002)(a case I handled), plaintiff was terminated because his wife rejected the advances of plaintiff’s supervisor. The Court rejected defendant’s argument that plaintiff could not bring the suit, because his wife was not an employee of defendant. In a sense, plaintiff was terminated because he was associated with an individual who engaged in protected activity.
Association discrimination cases are relatively (no pun intended) rare and present interesting and challenging fact patterns that require pushing the envelope of existing theories and precedents.