It is well-established that employers cannot discriminate against employees due to their age, gender, race, religion, disability, or any other class protected under federal and/or state laws. However, a lesser-known cause of action exists that alleges discrimination due to an individual’s association with someone in a protected class. These claims of bias are called “association discrimination” claims.

Is This A New Protected Class Under Title VII?

It is important to note that this is not a new protected class. To the contrary, this form of discrimination is prohibited by existing civil rights statutes and enforceable under the American with Disabilities Act (ADA), Title VII of the Civil Rights Act, Section 1981 of the Civil Rights Act of 1866, and the Family and Medical Leave Act (FMLA) in some instances.

Historically, association discrimination lawsuits have been uncommon, but they are on the rise. This trend may be partly attributed to the U.S. Equal Employment Opportunity Commission’s (EEOC) interest in highlighting and offering guidance on the different forms of this discrimination. As a result, employers need to be cognizant of this possible cause of action and take appropriate steps to minimize their liability.

Four Categories of Claims

To date, association discrimination claims have been limited to situations where either: (1) an employee alleges disparate treatment because of a relative’s or spouse’s disability; (2) an employee alleges disparate treatment or harassment because of his or her open association or marriage to someone of a different race; (3) an employee alleges disparate treatment because he or she is a parent or caregiver of minor children; or (4) an employee alleges retaliation because he or she suffered an adverse employment action that is believed to be causally related to the activities of another individual to whom they are related or with whom they are associated in some way.

What Does It Look Like?

To prove an ADA association discrimination case, the employee must establish each of the following key elements of the prima facie case: (1) The plaintiff was qualified for the position. (2) The plaintiff was subjected to an adverse employment action. (3) The plaintiff was known by his or her employer to have a relative or associate with a disability. (4) The adverse employment action occurred under circumstances that raise a reasonable inference that the disability of the relative was a determining factor in the employer’s decision.

Courts also have addressed the race-based association discrimination cases by definitively stating that both Title VII and Section 1981 prohibit discrimination in hiring or in the terms and conditions of employment based on an individual’s association with other races or based on interracial marriage. (See, for example, the Eleventh Circuit Court of Appeals case of Parr v. Woodmen of the World Life Ins.)

Family responsibility discrimination, also referred to as unlawful disparate treatment of workers with caregiving responsibilities, is essentially employment discrimination based on stereotypes. It occurs when an employee suffers an adverse employment action due to biases about how workers with family caregiving responsibilities will likely or should act, without taking into account workers’ actual performance or preferences.

Retaliation cases are particularly troublesome because, in Thompson v. North American Stainless, LP, the U.S. Supreme Court recently held that, in some instances, Title VII confers standing to sue upon an individual who suffers retaliation—even if that individual did not engage in any statutorily-protected conduct—relying upon the statutorily-protected conduct of someone “associated” with that individual.

What Should Employers Do?

• Consider adopting policies that are family-friendly and that prohibit all forms of association discrimination or retaliation.
• Educate and train managers and employees about these issues.
• Make employment-related decisions based on facts, not stereotypes.
• Document performance issues carefully before taking adverse action. (This will be your primary defense to any subsequent claims).
• Consider exercising much more discretion in learning about and engaging employees regarding their spouses, family, and friends. You cannot be held responsible for what you do not know.

Additional Information

Ogletree Deakins will be conducting a webinar to further discuss these issues on August 21, 2012. Please join the discussion if you have additional interest or questions regarding these new rising claims.

Tamika Nordstrom is a shareholder in the Atlanta office of Ogletree Deakins.