March 1, 2012
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R.f. Omaha
You probably knew that the Americans with Disabilities Act protects employees with disabilities from discrimination. What is less well-know: Under circumstances the ADA (and the Family and Medical Leave Act) also protects non-disabled employees from discrimination and retaliation.
You probably knew that firing an employee with disabilities–depending on your reason for firing him or her–may be in violation of the Americans with Disabilities Act. But did you know that firing a non-disabled employee may also be in violation of the ADA?
Consider the case of Edward McPhail, who was employed by Cox Communications Arizona for about 15 years–and with an allegedly unblemished record–until he was let go for excessive absences. The firing came less than a year after his wife was diagnosed with leukemia and Stage 4 lymphoma–the reason for his absences, which were leave taken under the Family and Medical Leave Act to care for his wife. (Click here to read about a woman who claimed her excessive absences because of cancer led to her firing.)
When an employer fires an employee "who merely has a relationship or association with an individual with a disability," it may trigger legal action under the ADA, the Employee Retirement Income Security Act (ERISA), and/or the Family and Medical Leave Act (FMLA), says Michael Grubbs, a labor and employment lawyer at Sherman & Howard in Phoenix, Arizona.
McPhail claimed discrimination under all 3 acts and wrongful termination under Arizona law, saying that he'd been fired because of his wife's disability and Cox's speculation about further time off–plus the insurance costs to the company of his wife's cancer (some $5,000 per month; his health care plan was company-funded). An Arizona court has ruled in favor of McPhail, refusing Cox's attempt to have the case dismissed.
How could McPhail invoke the ADA? In what Grubbs describes as a "somewhat overlooked provision of the ADA," there's a prohibition "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."
An example of associational discrimination? The Equal Employment Opportunity Commission offers this one: "An employer may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability."
(As for the other two acts McPhail has invoked: ERISA prohibits firing an employee because of his or his covered dependents' use of benefits. The FMLA says you can't consider an employee's use of FMLA leave as a negative when making hiring, promotion or disciplinary decisions.)
Judge David Campbell ruled that the case can go forward–that McPhail's claim of "associational discrimination" under the ADA was legit, as were his claims under FMLA and ERISA.
Notes Grubbs: "When taking adverse action against an employee who is "associated with" or related to a disabled individual, employers must proceed cautiously, basing any discipline or dismissal on an employee's demonstrated poor performance or misconduct, or other legitimate, nondiscriminatory reason."
He adds: "Employers should not merely speculate that an employee's association with a disabled person will cause the employee's future job performance to suffer, that the employee's care for a family member will require too many absences from work, or that the care for the employee's disabled relation will be too expensive for the employer."
Photo credit: Thinkstock
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R.f. Omaha 2 months ago
I think he should have lost--if he can't work, he loses his job, done. If he'd had the illness, then he should have been fired also, and he'd just have to make it on his own devices, as they say, for income and health care. I'm a Republican; that's how we think.