Most employers know they can’t discriminate against employees based on the employees’ own legally protected characteristics. But they may not realize that the same laws often also prohibit “association discrimination,” or “relationship discrimination.” In other words, employers can’t discriminate based on an individual’s association with someone in a protected class.
Forms of Association Discrimination
The employment discrimination laws don’t always expressly identify what forms of association discrimination they proscribe. The courts have recognized forms of this protection by applying more general aspects of the laws.
An employee may be able to claim harassment or discrimination based on:
- a relative’s disability;
- open association with or marriage to someone of a different race;
- being a parent or caregiver to children; and
- the protected activities of a relative.
Association Discrimination Under the ADA
The Americans with Disabilities Act (ADA) is one law that contains express provisions about association discrimination. The ADA covers all employers with at least 15 employees.
The ADA provides that no employer may “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
Among the forms of discrimination it expressly prohibits is “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.”
The ADA requires no familial relationship for an employee to receive this protection. The protection depends on whether the relationship of whatever type motivated the employer’s action.
Association discrimination does not afford all of the same protections under the ADA as it does to an employee who personally has a disability. Most notably, employers do not have to provide accommodations to employees (or applicants) based on the disability of a relative.
Association Discrimination Based on Race
Title VII of the Civil Rights Act of 1964 prohibits employers with 15+ employees from discriminating on the basis of race, color, sex, religion, and national origin. Unlike the ADA, Title VII does not contain any specific provisions about association or relationship discrimination. However, many courts have recognized such protections regarding race.
Here are some examples of actual cases where a court recognized a theory of racial association discrimination:
- White man alleged he was fired because of his marriage to a black woman.
- White woman alleged she lost her job because the employer disapproved or her social relationship with a black man.
- Employee alleged that employer reacted adversely to him because his race differed from his daughter’s.
Title VII doesn’t identify “caregivers” as a protected characteristic. But the EEOC and some courts have applied the law to provide employees rights to raise children.
Most of these cases have involved women claiming they were denied employment opportunities for having or wanting to have children. In a 2009 decision, the U.S. Court of Appeals for the First Circuit summarized: “In the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.”
The EEOC has consistently taken this position, which it has described in assorted guidance documents.
Other Bases for Association Discrimination Claims
A few appellate courts have ruled that Title VII prohibits association discrimination regarding each of the law’s protected characteristics. Most recently, the U.S. Court of Appeals for the Second Circuit (which covers Connecticut, New York, and Vermont) ruled, “we now hold that the prohibition on association discrimination applies with equal force to all the classes protected by Title VII . . . .”
The Second Circuit made this pronouncement through a February 26, 2018 decision in which the court ruled that Title VII prohibits sexual orientation discrimination through its general inclusion of sex as a protected characteristic. You can learn more about that decision in an earlier post.
Retaliation by Association
In 2011 the U.S. Supreme Court ruled that an employee may sue his employer for retaliation under Title VII claiming that he had been fired because his fiancée had filed a sex discrimination charge against their employer.
Before this decision, many courts had concluded that Title VII’s retaliation protections only applied to the persons who personally engaged in protected activity. For example, the person who has filed a discrimination complaint. The Supreme Court, however, advised that “Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
On that standard the Court continued: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.”
Many of the legal details in this area remain murky. The Supreme Court has not weighed in recently on most of these questions. It is not certain how it would rule in these cases today. Regardless, most employers don’t want to be in the position of finding out directly. Accordingly, it is best to avoid any appearance of discrimination, whether based directly on an employee’s characteristics or those of their relatives or others with whom they associate.
Employers should also be aware of the Genetic Nondiscrimination Act (GINA), which likewise applies to employers with 15+ employees. Among other things, GINA prohibits discrimination in employment based on an individual’s family medical history. For more, read Don’t Forget GINA.
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