We are blogging on Mark Oberti’s paper on the “5 Things Employers And Employees Need To Know About Cancer In The Workplace”
In a little known part of the ADA, the law provides that it is unlawful for an employer to discriminate against an individual because of his relationship or association with an individual with a disability. 42 U.S.C. § 12112(a), (b)(4). More informally, this provision prohibits three types of discrimination against employees associated with, or related to someone with, a disability:
• Discrimination based on expense: where an employee suffers an adverse employment action because of an association with a disabled individual covered under the employer’s health plan, which is costly to the employer.
• Discrimination based on disability by association: where the employer fears that the employee may contract the disability of the person he or she is associated with (e.g., HIV), or the employee is genetically predisposed to develop a disability that his or her relatives have.
• Discrimination based on distraction: where the employee suffers an adverse employment action based on the employer’s speculation that they will be inattentive at work because of the disability of someone with whom he or she is associated.
Relying on this theory, the EEOC sued the employer in E.E.O.C. v. DynMcdermott Petroleum Operations Co., 537 Fed. Appx. 437 (5th Cir. 2013), the EEOC alleged that the employer had refused to hire an otherwise outstanding candidate because his wife had cancer. The district court threw the EEOC’s lawsuit out, but in 2013 the Fifth Circuit Court of Appeals reversed the district court’s decision and remanded the case for trial.