Recently, I blogged about a press release from the Equal Employment Opportunity Commission in which it misstated the law on post-offer medical examinations under the Americans with Disabilities Act. I was hoping that was a one-off mistake. But another recent EEOC press release has given me some concern, because I believe that it again misleads employers on their obligations under the ADA – this time with regard to associational discrimination.
In addition to prohibiting discrimination against and requiring reasonable accommodations for employees with disabilities, the ADA also prohibits discrimination against employees because of their association with disabled individuals. So, for example, an employer could not refuse to hire someone with a disabled child or spouse because the employer believes that its insurance rates will rise or the person will need a lot of time off to care for the family member. But, as the EEOC specifically states in its Questions and Answers About the Association Provision of the Americans with Disabilities Act:
4. Does the ADA require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability?
No. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.
And yet, in its recent press release, the EEOC seemed to suggest that such accommodation was required. As stated in the press release, the employee “sought a transfer to work nearer to where his son lived and requested leave to assist with his care.” The transfer was “to help deal with his son’s severe disability.” According to the EEOC, the employer “violated federal law when it denied [the] employee a transfer based on his son’s medical condition and then fired him…” The employer agreed to pay $100,000 to settle the EEOC’s claims on behalf of the employee.
But wait! If the employee is seeking a transfer and leave to care for his son, doesn’t that sound like an accommodation for the son’s disability? Which doesn’t need to be provided under the ADA!!!
I assume that, in actuality, the EEOC’s position is more nuanced. Perhaps (or likely) something along the lines of the employee was being denied leave and the transfer that would have otherwise been available to him and/or other employees for other reasons. So, for example, perhaps the employee would have been granted the transfer if the reason was because his spouse got a new job, or he liked the weather better in the new location. Or he would have been granted similar leave for vacation or to take classes, but not to care for his son.
But that’s not something that most employers would realize upon reading the press release. I believe that most readers, like me, would assume EEOC is saying that the employer is obliged to provide a transfer and leave specifically to care for the son – in other words, to accommodate the son’s disability. And that’s just wrong.