The Americans with Disabilities Act prohibits discrimination against employees because of their association with a disabled person. In practice, this means that an employer cannot refuse to hire, or take adverse action against an applicant or employee who has a family member with a disability. For example, fear of an applicant missing work because a child has a serious medical condition is not adequate grounds to deny employment absent clear proof that the applicant cannot meet the job’s expectations.

With that said, the ADA does not require employers to provide accommodations for non-disabled employees to care for a disabled family member. However, a new case from the Second Circuit Court of Appeals makes clear that the employer’s reaction to such accommodation request can form the basis for an ADA associational discrimination claim.

In Kelleher v. Fred. A. Cook, Inc., a newly hired employee advised his supervisor that his daughter suffered from a severe neurological impairment, and that he may have to leave work on short notice to deal with her medical situation. He requested a modified shift schedule, but this request was denied, with his supervisor allegedly responding that his personal issues were not the company’s problems. He missed work on several occasions, and was eventually demoted and terminated after a second accommodation request was denied. The plaintiff sued for ADA associational discrimination, but the district court dismissed the complaint on the basis that the employee was not qualified to perform the job due to his need to miss work for his daughter’s care.

On appeal, the Second Circuit reversed this dismissal, remanding the case for additional proceedings. While the court confirmed that the employer had no accommodation obligations, the employer’s strongly negative reaction to the plaintiff’s requests raised factual issues over its motivation in terminating his employment. The plaintiff only missed work on occasion, and never claimed that failure to grant the shift changes would leave him unable to work. As such, he has the opportunity to demonstrate that his employer’s actions were based on its negative reaction to his requests and not a conclusion that he was not performing the job to expectations.

Associational discrimination claims usually arise from employees who are not eligible for FMLA leave. Had the plaintiff in this case qualified for FMLA, the employer would have been obligated to provide intermittent leave to deal with his daughter’s care needs. Employers who deny employee requests for accommodations based on the need to provide care for a relative should carefully document the basis for the denial, and avoid expressions of frustration or speculation about the impact of the disability on the employee’s ability to work.