Quirky Question # 182, Accommodating Employee with Disabled Spouse

Question:

One of our management employees has a spouse with some serious health problems.  Until recently, this fact has not had an impact on his job performance.

Of late, however, he has been distracted by his wife’s recurrent illness (understandably) and her associated treatment.  This problem now is affecting his performance.  After a failed attempt to work with him to improve his performance, we fired him.  He now claims that we violated the ADA and that we were obligated to accommodate him with regard to his care for his wife.  He also claims that we violated the “associational” discrimination component of the ADA.

Did we screw up by ending his employment relationship with our company?

Answer:

In September 2011, along with our former partner, David Lauth, now Senior Associate General Counsel at UnitedHealth Group, we conducted the Eighth Annual Quirky Employment Questions seminar.  We used Question 182 during the session.  Interestingly, we asked for a show of hands to ascertain how many members of  the audience believed that their companies were obligated to accommodate, under the Americans with Disabilities Act (ADA), an employee whose spouse was disabled.  About 50 percent of the audience thought their companies had a legal obligation to do so in the context of the fact pattern above.  They were wrong.

Of course, this is not to suggest that companies should not offer an existing employee some accommodation to help him or her deal with a serious health condition of a family member.  There may be compelling ethical or moral reasons to make that kind of accommodation.  Moreover, there may be persuasive practical reasons to accommodate an employee confronting this type of family crisis.  These include, without limitation: a) the company’s desire to retain a skilled employee, which may not be possible without some kind of accommodation; b) the appreciation that the employee will feel for the employer’s actions, strengthening the employee’s commitment and loyalty to the company; c) the good will the company’s actions may generate among the employee’s co-workers, who recognize how the accommodation was consistent with the articulated values of the company; d) the avoidance of the costs associated with having to replace a highly skilled employee (from hiring to training to retention); and e) the avoidance of the resentment other employees may feel when one of their colleagues is fired as the result of assisting an extremely ill family member.

But, is there a LEGAL OBLIGATION to accommodate, under the ADA, an existing employee who has to care for a disabled family member?  Nope! 

Having made that statement, there may be legal obligations to provide an employee leave to assist a disabled family member under the Family and Medical Leave Act (FMLA).  But, the qualifying FMLA criteria and the nature of the “accommodation” (12 weeks of unpaid leave), are quite different from a reasonable accommodation of a disabled employee under the ADA.

Moreover, the question above posits that the individual whose family member is disabled, and who needs some type of accommodation to provide the requisite care, already is employed.  This is quite different from the context where an individual is being considered for a position and the company rejects the applicant because of a perception about how the individual might be affected by his/her family member’s disability or by his/her “association” with the disabled family member.  Different standards apply with respect to an applicant (and a company’s perception of how that person might perform the job), and an existing employee.

As described in the question above, your company has an employee who for at least a period of time (potentially a significant variable, as discussed further below), has had a spouse with “some serious health problems.”  And, although the spouse’s serious health problems have not affected your employee’s performance in the past, that has changed of late.  As you state, your employee’s performance now is being adversely affected by the care he is providing his spouse.  You also noted that you attempted to work with your employee to improve his performance but your efforts were not successful.  Consequently, your company made the difficult decision to terminate your employee’s employment.

Your employee contends that your company violated the ADA and that your organization disregarded the associational discrimination component of the ADA.  He’s wrong.

The pertinent provision of the ADA is §12112(b)(4), which prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”  In short, you cannot deny this applicant (the “qualified individual”) a job because the applicant has a relationship or association with someone who has a known disability.

As described in a recent case, the legislative history of this provision helps explain the prohibited conduct:

“[A]ssume, for example, that an applicant applies for a job and discloses to the employer that his or her spouse has a disability.  The employer believes the applicant is qualified for the job.  The employer, however, assuming without foundation that the applicant will have to miss work or frequently leave work early or both, in order to care for his or her spouse, declines to hire the individual for such reasons.  Such a refusal is prohibited by this subparagraph.

In contrast, assume that the employer hires the applicant.  If he or she violates a neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason for the absence or tardiness is to care for the spouse.  The employer need not provide any accommodation to the nondisabled employee.  The individuals cover under this section are any individuals who are discriminated against because of their known association with an individual with a disability.”  (Emphasis added.)

The recent case of Stansberry v. Air Wisconsin Airlines Corporation, File No. 11a0177 (Sixth Circuit July 6, 2011), provides a good illustration of the points involved in your inquiry.  Stansberry sued his employer, Air Wisconsin Airlines (AirWis) alleging “associational discrimination” under the ADA, based on the fact that his wife suffered from a rare and debilitating autoimmune disorder.  Stansberry contended that AirWis fired him because of unfounded fears that he would be distracted at work.  The trial court granted the employer summary judgment.  The Sixth Circuit affirmed.

Stansberry had worked for AirWis for about 8 years at the time he was fired.  During this period, his wife’s serious health condition had progressively worsened.  Near the end of his employment, there were several serious problems at AirWis’s Kalamazoo location, where Stansberry was the highest ranking AirWis manager.

There was disputed testimony about what caused these problems (six different employees in Kalamazoo receiving a total of nine security violation letters, resulting in a TSA letter of investigation).  These problems exacerbated an already strained relationship between Stansberry and his supervisor, Marvin Mulder.  Due to the security violations, the TSA investigation, and other performance-related issues, Mulder made the decision to fire Stansberry.  Stansberry then sued, as described above.

As the Sixth Circuit pointed out, the courts that have examined the “associational” discrimination provisions of the ADA have focused on three component parts of that theory: a) expense; b) disability by association; and c) distraction.  As the name implies, the “expense” theory is that the employee’s association with the disabled spouse or other family member will result in additional costs to the company, such as through the company’s health care program.  Stansberry did not base his claim on this part of the theory, despite the fact that his wife’s treatments were quite expensive.

The “disability by association” theory is grounded on the notion that the employee is connected with someone who has a communicable disease (e.g., HIV) and, therefore, could become “disabled” in the future.  Stansberry’s wife did not have a communicable disease so his claim was not based on this argument.

The “distraction” theory is based on the notion that the employee will be distracted by his/her spouse’s disability, and therefore be a less productive employee.  Stansberry based his claim on this analytical framework.

The modified McDonnell-Douglas analysis that applies to this type of claim involves four elements: a) the employee was qualified for the position; b) the employee was subject to an adverse job action; c) the employee was known to be associated with a disabled individual; and d) the adverse action occurred under circumstances raising a reasonable inference that the relative’s disability was a determining factor in the decision.  Both the trial and appellate courts found that Stansberry could not satisfy the fourth element – “the record is replete with evidence that Stansberry was not performing his job to Air Wisconsin’s satisfaction and devoid of evidence to suggest that his discharge was based on any unfounded fears that his wife’s illness might cause him to be inattentive or distracted in the future.”

Here, as referenced above, the fact that Stansberry had been a long-term employee AND the fact that AirWis had long been aware of his wife’s physical condition undermined his claim.  As the circuit court observed, “Because Air Wisconsin knew of her disability for a long period of time, this undercuts the inference that Stansberry’s termination was based on unfounded fears that his wife’s disability might cause him to be inattentive at work.”  (Citations omitted.)

The keys to the Stansberry decision are two-fold.  First, Stansberry’s performance had declined.  Thus, AirWis could point to this factor as the motivating basis for its decision.  Second, the ADA did not provide Stansberry the protection he sought.  The Sixth Circuit made clear:  “Importantly, while Stansberry’s poor performance at work was likely due to his wife’s illness, that is irrelevant under this provision of the Act.  Stansberry was not entitled to a reasonable accommodation on account of his wife’s disability.”  (Emphasis added.)

Returning then to your question, we  do not believe that you “screwed up” by terminating your employee’s employment.  As long as you can justify your decision by demonstrating the decline in your employee’s performance, and his inability to improve his performance despite your efforts to work with him, you should prevail in the litigation.  This is true even if, as the Sixth Circuit’s Stansberry analysis illustrates, your employee’s performance declined BECAUSE OF his wife’s illness.  That may appear to be a harsh result but your company has not violated the ADA by making this decision.