Knowledge of Familial Disabilities

When investigating a claim of preferential treatment (or disparate treatment) by an employee alleging "Caregiver Disability Discrimination," the EEO investigator should first try to obtain information about familial disabilities of the employee who was allegedly treated preferentially in the case at hand.  The EEO investigator should first ask the complainant employee if he/she knows anything about the preferentially treated employee’s family and whether any have "known" disabilities.  Also, ask the responsible management official (the decision-maker) if he/she has any information about familial disabilities of the preferentially treated employee.  

If the preferentially treated employee ALSO has a similarly disabled family member, it will be much harder for the complainant to prevail on his/her claim.  If management says they had no knowledge of any familial disabilities of the preferentially treated employee, then the question ends there. Whether the preferentially treated employee actually has disabled family members is not something the EEO investigator would need to delve into because it is not relevant unless the decision-maker knew about it when he/she made the decision. If the management official was aware of familial disabilities of the preferentially treated employee, then they can describe what they knew to the EEO investigator.  

If management says they had no knowledge of any familial disabilities of the preferentially treated employee, then the EEO investigator needs to examine management’s explanation for their actions. Can management articulate a legitimate, non-discriminatory reason for their actions and why complainant was treated differently?  Is the reason they give a pretext (fake excuse or ploy) for a true discriminatory motive?

Similar Prior Decisions by Management

Secondly, an EEO investigator can, and should, also seek "comparative data" based on similar prior decisions by the "decision-maker" with other employees ("comparators").  So, depending on the size of the employer, I usually ask the responsible management official to go back about one or two years to describe all similar incidents and address whether any of the employees he/she gave preferential treatment to had disabled family members. It is very important to only ask for "known" information, that is, information the decision-maker knew at the times they made their decisions in the comparative situations. Sometimes management witnesses want to "help" by finding out the answers for an EEO investigator.  Witnesses need to be cautioned that they are not to "research" the EEO investigator’s questions, unless specifically asked to do so.

If the management official can show that he/she had knowledge of familial disabilities of the favorably treated employees (including the employee treated preferentially in the pending investigation) in similar situations or under similar circumstances, then this is fairly strong evidence that the management official does not have a propensity to discriminate against employees who have disabled family members.  However, as in every case, this evidence must be weighed against other factors too, so it is not a perfect litmus test.

Employer Must Show Legitimate Non-discriminatory Reason for Actions

Discrimination laws do not prevent employers from firing a disabled employee or his/her caregiver. They simply require that employers have a legitimate non-discriminatory reason for the termination. "Nondiscriminatory" means you have terminated similarly situated employees for the same reason and haven’t discriminated on the basis of protected group status.  "Legitimate" means a non-pretextual reason.

An employer’s pre-termination actions with the complainant and the comparator employees, especially comparator documentation, should be examined closely by the EEO investigator to determine if the documentation supports the employer’s stated legitimate reason for the adverse employment action.