Employees are increasingly pressing “association” retaliation and discrimination claims around the country.
For example, a man who was fired after his fiancée filed a discrimination charge with the EEOC can sue for retaliation under Title VII, the 6th Circuit recently ruled (Thompson v. North American Stainless, No. 07-5040.)
The decision apparently creates a split among the federal circuits – with the 3rd, 5th and 8th Circuits as ruling to the contrary.
And in the disability context, the 7th Circuit recently ruled that a nurse can sue under the Americans With Disabilities Act for association discrimination based on her claim she was fired because her self-insured employer wanted to avoid the hefty cost of her husband’s cancer treatment (DeWitt v. Proctor Hospital, No. 07-1957).
The ADA’s “association discrimination” section prohibits an employer from discriminating against an employee based on “the known disability of an individual with whom [the employee] is known to have a relationship or association.”
The 7th Circuit said the plaintiff, Phillis DeWitt, provided enough evidence of discrimination to allow her suit to go forward.
In the job retaliation context, plaintiffs’ lawyers say the 6th Circuit decision in Thompson v. North American Stainless takes a fresh look at workplace retaliation.
“This is an example of a court of appeals looking at the issue broadly,” said Jody L. Newman of Boston. “It’s a refreshing opinion that says retaliation law is more about the forest than the trees.“
Sara Goldsmith Schwartz, managing partner at Schwartz Hannum, a management-side labor and employment firm in Andover, Mass., predicted more such retaliation suits will be filed.
“The concept of associational retaliation, which is what the 6th Circuit is recognizing in this case, is an increasingly well-publicized concept in disability law,” Schwartz said. “If I have a disabled child and you treat me differently because I have a disabled child, that is prohibited by law. It’s the same concept.”
It is unclear exactly how close a relationship courts might require before a third party can bring a claim. But Schwartz is encouraging her clients to pay more attention to associational retaliation.
“The 6th Circuit recognized a fiancé. So I would train managers to think about roommates who work together, people who carpool, people’s grandparents and stepchildren,” she said.
Carolyn N. Wheeler, an assistant general counsel at the Equal Employment Opportunity Commission, which submitted an amicus brief in the 6th Circuit case, called the decision “an important construction” of retaliation law.
“If an employer says they can fire anyone because of this one person, it would have a chilling effect on the workplace,” she said. “If you think others would suffer the consequences, you’d be less inclined to complain.”

Association discrimination in disability context

According to the EEOC, the number of association-discrimination lawsuits reached a record 253 in 2007, up from 194 from the previous year.
The 7th Circuit’s DeWitt case is a prominent example of this type of lawsuit.
Phillis DeWitt worked at a hospital for nearly four years before she was fired. Over that time, her husband required extensive treatment for cancer. The hospital was partially self-insured, paying for employees’ medical costs up to $250,000 per year. Anything above that amount was covered by a private insurer.
After DeWitt had been working at the hospital for three years, her supervisor confronted her about her husband’s medical expenses. Several months later, the supervisor organized a meeting of the hospital’s clinical managers, told them that the hospital faced financial trouble and suggested that “creative” efforts were required to cut costs. Three months later, DeWitt was fired.
The court said “[T]he timing of [the plaintiff’s] termination suggests that the financial albatross of [her husband’s] continued cancer treatment was an important factor in [the hospital’s] decision.”
The court also found that DeWitt had “established that direct evidence of ‘association discrimination’ may have motivated [the hospital] in its decision to fire her” and a jury should be allowed to consider her claim.
Generally, this type of claim can be hard to prove because a plaintiff must that the relative’s or associate’s disability is covered under the ADA and must also show a direct link between that and the employer’s job action.
According to the EEOC, the law is meant to prevent employers from discriminating against employees based on stereotypes and assumptions about caregivers, such as a lack of commitment to the job or unreliable work schedules.

Retaliation context

Plaintiffs’ lawyers hope other courts will follow the 6th Circuit’s lead in the retaliation context.
“As the workplace changes, the courts need to have some flexibility to apply a law that was intended as this broad remedial measure to the current realities of today’s workplace,” Newman said.
“It’s tough to think of a more effective tool for discouraging employees from filing discrimination charges or opposing discrimination than firing a friend or relative,” agreed Alex B. Long, an associate professor of law at the University of Tennessee who recently wrote an article about workplace retaliation and Title VII for the Florida Law Review.
Employment defense lawyer Schwartz predicted that courts in “employee-friendly states like Massachusetts” may follow the 6th Circuit’s lead.
In the 6th Circuit case, Miriam Regalado and Eric L. Thompson were co-workers at North American Stainless, LP, in Carroll County, Ky. and were engaged to be married. Their relationship was common knowledge at the company. In September 2002, Regalado filed a claim with the EEOC alleging that her supervisors had discriminated against her on the basis of her gender.
Five months later, the EEOC notified North American Stainless of the charge. Thompson was fired three weeks later.
Thompson sued for retaliation. North American Stainless denied the charge, claiming that he had been fired for performance reasons.
A U.S. District Court granted summary judgment for the employer. But in a 2-1 decision, the 6th Circuit reversed.
The court noted that a “literal reading” of Title VII’s anti-retaliation language suggests that it applies only to employees who engage in protected activity. However, the court said, “[s]uch a reading … ‘defeats the plain purpose’ of Title VII. There is no doubt that an employer’s retaliation against a family member after an employee files an EEOC charge would, under Burlington, dissuade ‘reasonable workers’ from such an action.”
The 6th Circuit acknowledged that other courts have expressed concerns about whether such a decision would trigger a flood of lawsuits from relatives and associates of people who file EEOC charges.
Long said employer fears the decision will create a new class of plaintiffs may be overstated, because a plaintiff “still has to prove a causal connection between the protected activity and the firing of the third person.”
Newman agreed.
“As this court said, just because you can bring a claim doesn’t mean you’re going to win a claim,” she said. “People need to remember that these cases are extremely difficult to prevail in.”
But management-side employment lawyer Jonathan T. Hyman of Korman Jackson & Krantz in Cleveland recently suggested in his Ohio Employer’s Law Blog the ruling had the potential to create a broad new plaintiff class.
“In Thompson, the relationship was a fiancée,” he wrote. “It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation?”
The uncertainty of the associational reach, said Hyman, “could hamstring employers from making any employment decisions for fear of doing something against someone last October. The implications of this case have the potential to reach that level of silliness.”