In Rope v. Auto-Chlor
Sys. of Wash., Inc. (2013) 220 Cal. App. 4th 635, a California court of
appeals for the first time interpreted Federal law to protect California employees
from termination for assisting physically disabled people under FEHA’s
associational discrimination provision. The court reasoned that when a company
has a strong incentive to fire an employee because of their association with a
disabled person, and does so, a claim may exist even when the intent is purely
monetary.
In Rope the
plaintiff asked for more time off from work to donate a kidney to his sister.
He used a paid leave and asked for an extension when it became apparent that he
would need additional time for the procedure.
He was fired two days before Donation Protection Act (“DPA”) became law,
which would have protected his leave. He
asserted a claim for wrongful termination in violation of public policy. The
trial court dismissed this and other claims. The court of appeals reversed and
said he had a potential claim for associational discrimination and sent it back
to be tried.
So how is this likely to impact employees who associate with disabled people?
Let’s put it into perspective. A person with a family member or close friend
with a disability may be perceived as someone who will need time off or will be
unreliable or inattentive at work because of his or her association with the
disabled. Maybe the employer learns of
the disabling condition and fears that their employee could potentially develop
it due to a genetic relationship. Perhaps the employer fears monetary loss due
to an increase in medical plan costs due to high medical costs associated with
a disability or paid leaves or loss of training money. If an employer were to act on any of these
fears and terminate an employee or refuse to hire, an associational disability
discrimination claim may exist.
These scenarios were mentioned in Rope, citing Larimer v. International
Business Machines Corp. (7th Cir. 2004) 370 F.3d 698 the seminal federal
case. However, Rope only considered
the “expense” or monetary loss scenario. The Rope court confirmed that FEHA exists to provide greater protection
than the Americans with Disabilities Act (“ADA”). Larimer interprets the ADA.
How does this relate to statutes that protect associations with disabled persons?
An employer, under the California Family Rights Act, may
have an obligation to provide time off to care for the serious health condition
of an immediate family member or spouse if the employee meets eligibility
requirements. These employees may have
dual protection.
But what about non-relatives and those family members that
do not satisfy the seniority requirements, full-time employment, and employer
size requirements of CFRA? Associational
disability discrimination provides them with protection should an employer
terminate them or deny employment because of their association with a disabled
person.
The image in this article was provided courtesy of Toa55 / FreeDigitalPhotos.net
