Employers and employees are generally aware that it is against the law to discriminate against an individual on the basis of his or her disability. What may be surprising, however, is that there are federal and state laws that offer even broader protections against what is referred to as “associational discrimination” in the workplace.
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against people with disabilities in areas including employment, transportation, public accommodations, communications and access to state and local government programs and services.
As it relates to employment, Title I of the ADA specifically prohibits employers with 15 or more employees – including state and local governments, employment agencies and labor unions – from discriminating against qualified individuals with disabilities in applying for jobs, hiring, firing and job training. In addition, Title I extends protections for qualified employees and job applicants to include discrimination based on assumptions arising from their association or relationship with an individual with a known disability. This is known as “associational discrimination.”
It is unlawful for an employer to make unfavorable employment decisions based on unfounded concerns about the disability of anyone with whom an employee or applicant has a relationship. These associations can be between spouses or family members as well as with friends, colleagues and members of any other protected class. Examples of how associational discrimination applies in employment settings include:
Refusing to hire a qualified job applicant who has a disabled child based on fears the applicant will be out of the office a lot
Firing an employee who works with individuals who are HIV-positive on the assumption that the employee will contract the disease
Denying opportunities for advancement or health care coverage available to others because of the disability of an employee’s dependent
Telling an employee they cannot bring a disabled child or spouse to a company function because it may make others uncomfortable
New Jersey has one of the most comprehensive statutes protecting employees against discrimination in the workplace. The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating in any job-related action, including recruitment, interviewing, hiring, promotions, discharge and compensation. While the NJLAD does not explicitly prevent an employer from taking an adverse job action based on a worker’s relationship with an individual with a disability, courts have held that the law is broad enough to recognize claims for associational discrimination.
An employee who believes they have been subjected to associational discrimination may file a complaint with the New Jersey Attorney General's office, the Division on Civil Rights. They also can file a complaint with the Federal government through the federal Equal Employment Opportunity Commission (EEOC), which enforces Title I of the ADA. Alternatively, the employee can file a lawsuit for NJLAD claims in state or federal court, or file a lawsuit based on federal claims in federal court once certain criteria are met.
Employees who wish to make a claim generally must have proof that they:
Were qualified for the job and performing the job at the time of the adverse job action;
The employer knew the employee had a relative or associate with a disability; and
The circumstances raise a reasonable inference that this disability was a determining factor in the employer’s action
Companies can help prevent discriminatory situations and avoid litigation by training managers about the legalities concerning the treatment of workers under the NJLAD and other laws. Fostering diversity and inclusion in the workplace requires establishing and implementing company policies that prohibit discriminatory conduct – and ensuring that all employees are educated about these policies.
If you are an employer or employee with concerns about discrimination at your workplace, you may want to seek independent legal counsel from a knowledgeable employment attorney. We handle complex employment law matters in New Jersey and are here to provide advice and explain your rights. Please call me with your questions or concerns at 973-509-8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances