A large number of EEO investigations I have done have involved some aspect of disability or a medical leave of absence claims—even if "Disability Discrimination" is not the main claim being made by the employee complainant. EEO investigations are oftentimes complex with many different legal issues, and “disability” may be just one of many allegations.
New twists and turns on disability claims are being made by complainants all the time, and no two cases are ever the same. Sometimes a complainant’s attorney is simply being creative with the law and trying to push the envelope to see how far the law can be stretched into uncharted territory. Other times, the claim is not really a new type of disability claim at all—but rather, it’s a nuance in the law that has gone largely unnoticed, unpublicized, or occurs infrequently.
One of these nuances of disability discrimination law is Caregiver Discrimination. While an employer’s managerial employees are generally familiar with their obligation not to discriminate against qualified disabled individuals, they may not realize that the American’s with Disabilities Act (ADA) also provides limited protection for individuals who may not have disabilities at all. Specifically, the ADA prohibits employers from excluding or otherwise denying equal jobs or benefits to persons (disabled or not) who have a relationship or association with an individual with a disability.
Caring for individuals with disabilities – including care of adult children, spouses, or parents – is a common responsibility of workers. According to the U.S. Census Bureau, Disability and American Families: 2000, nearly a third of families have at least one family member with a disability, and about one in ten families with children under 18 years of age includes a child with a disability. Most men and women who provide care to relatives or other individuals with a disability are employed. See Informal Caregiving: Compassion In Action, published by the U.S. Department of Health and Human Services.
An example of a violation would be an employer refusing to hire a job applicant whose wife has a disability because the employer assumes that the applicant would have to use frequent leave and arrive late due to his responsibility to care for his wife. See e.g., Abdel-Khalke v. Ernst & Young, LLP, No. 97 CIV 4514 JGK, 1999 WL 190790 (S.D.N.Y. Apr. 7, 1999) (employer refused to hire applicant because of concern that she would take time off to care for her child with a disability).
Caregiver discrimination claims can be tricky, so EEO investigators need to stay up on the many nuances so they don’t unknowingly provide a false report of no liability.