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October 8, 2019

Court of Appeals Green Lights Associational Discrimination Lawsuit Under the ADA

Associational discrimination is described in the Americans With Disabilities Act (ADA), 42 U.S.C. § 12112(b)(4) as “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.” As established in McMillan v. City of New York, a claim for associational discrimination is governed by the burden-shifting presumption under which a temporary presumption of discriminatory motive arises if a plaintiff can show (1) they are a member of a protected class, (2) they were qualified for employment in that position, (3) they suffered an adverse employment action, and (4) there is some minimal evidence supporting an inference that their employer acted with discriminatory motivation.

In the September 2019 Kelleher v. Fred A. Cook, Inc. case, the plaintiff, after missing a day of work, requested that his shifts be reduced from 10-12 hours to eight hours so he could care for his disabled daughter. His employer denied his request and subsequently terminated him. Kelleher sued, claiming associational discrimination under the ADA. The district court dismissed the complaint for failure to state a claim.

On appeal, the issue was whether Kelleher’s complaint was deficient because, in addition to alleging discrimination, it affirmatively pleaded nondiscriminatory facts that could explain his termination. Specifically, Kelleher acknowledged he could not work a full shift, had missed a day of work, had once arrived 15 minutes late, and typically left work immediately after his shift ended––which his employer prohibited. Because of these admissions, his employer argued that Kelleher was unqualified for the position and was not entitled to an accommodation under the ADA.

The US Court of Appeals for the Second Circuit concluded that Kelleher’s request for a shorter shift was not an admission of his inability to perform the essential functions of his position without that accommodation. Moreover, his acknowledgement of other infractions did not render his discrimination claim implausible. The court noted that although “[a]n employer is not required to be tolerant of small, isolated infractions,” those infractions cannot, as a matter of law, be said to result in a concession that the employee is unqualified. In other words, the question of qualification cannot be decided on pleadings alone. Because the nondiscriminatory facts that Kelleher pleaded did not defeat his claim, the remaining allegations in his complaint were sufficient to support an inference of discrimination. Specifically, the employer’s comment that Kelleher had to “leave his personal problems at home” after he requested a shorter shift was sufficient for such an inference.

Although Kelleher concerned a motion to dismiss, employers should take note of the court’s warning that, even if Kelleher’s employer was not required to provide him with a reasonable accommodation, “an employer’s” reaction to a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.

If you would have any questions regarding the content of this alert, please contact Shaleem Yaqoob, associate, at or another member of the firm’s Labor & Employment Practice Area.


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