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Thursday, June 05, 2008

Law - Lawsuits Test Associational Discrimination Under the ADA

"Lawsuits Test Disabilities Act: Two Cases Cite Little-Known Protections For People Who Aren't Disabled But Care For Those Who Are," was the headline of this article yesterday by Jane Zhang of the Wall Street Journal.. Some quotes:

Two lawsuits now pending could open the door to many more claims under a little-known provision of the Americans With Disabilities Act that protects the jobs of relatives and other caregivers of disabled people.

In the most prominent case, Phillis Dewitt says she was fired in 2005 by Proctor Hospital in Peoria, Ill., as a result of her disabled husband's extensive medical bills. In the other case, a couple from Wyoming employed by the same company, PacifiCorp, alleges that the utility company fired them to avoid the costs of treating their son's brain tumor. Both lawsuits argue that the plaintiffs faced "association discrimination" based on a worker's association with a disabled person. * * *

Association discrimination aims to prevent employers from discriminating against workers based on "unfounded stereotypes and assumptions about" people who care for or work with the disabled, the EEOC says. For example, it forbids businesses from firing a worker who volunteers at AIDS clinics, for fear of contracting the disease; or refusing to hire an applicant with a disabled child, assuming that the person will be unreliable at work, the EEOC says.

Legal victory in such cases, including Ms. Dewitt's, is far from guaranteed. Judge Richard Posner, a member of the Seventh U.S. Circuit Court of Appeals panel that unanimously cleared the Dewitt lawsuit for trial, laid out a strategy for the hospital in his concurring opinion: Show that she was fired strictly to cut costs -- something the law allows.

But that may not be a viable strategy for Proctor Hospital, which, in a motion to dismiss the lawsuit in the lower court, argued the opposite: that Ms. Dewitt wasn't fired for costs and that the hospital kept other workers with higher medical expenses.

Lawrence Rosenthal, a law professor at Northern Kentucky University's Salmon P. Chase College of Law and author of a paper on association discrimination, says that "very few" plaintiffs win their claims because they must establish that the relative's or associate's disability is covered under the ADA and show a direct link between that and their employer's actions.

The Dewitt opinion was issued by the 7th Circuit on Feb. 27th, 2008: access it here.

Posted by Marcia Oddi on June 5, 2008 10:37 AM
Posted to General Law Related | Ind. (7th Cir.) Decisions