7th Circuit Explains Associational Disability Discrimination under the ADA

On August 6, 2020, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in a lawsuit in which the plaintiff alleged associational disability discrimination and retaliation under the Americans with Disabilities Act ("ADA").  Pierri v. Medline Industries, Inc., No. 19-3356 (7th Cir. Aug. 6, 2020).  The plaintiff was a chemist for the defendant.  Initially, he did well at the company, but problems arose after he asked for accommodations to enable him to take care of his ailing grandfather.  The defendant gave him time off to take care of his grandfather under the Family and Medical Leave Act ("FMLA").  However, the plaintiff claimed that his supervisor then became so hostile to him that he required personal time off because of the stress.  He took FMLA leave and never returned to work.  The defendant eventually terminated his employment for his failure to return to work or provide a return date.

The plaintiff alleged two counts in his federal lawsuit: (1) that the defendant discriminated against him in violation of the ADA for his association with his ailing grandfather; and (2) that the defendant retaliated against him in violation of the ADA for complaining to Human Resources and for filing a complaint with the EEOC.  The ADA prohibits an employer from discriminating against an employee because of the known disability of an individual with whom the employee is known to have a relationship or association.  The plaintiff alleged that the defendant, through his supervisor, discriminated against him because of his association with his grandfather.  The 7th Circuit has recognized three situations in which a plaintiff may bring a claim of associational discrimination under the ADA: (1) the expense variant, when an employee's relative has a disability that is costly to the employer because the relative is covered by the employer's health insurance plan; (2) the disability by association theory, when an employer fears that the employee may have become infected with a disease because of the known disease of an associate of the employee; and (3) the distraction scenario, which arises when the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, but not so inattentive that to perform to his employer's satisfaction he would need an accommodation.  The plaintiff argued the distraction situation.  But there was no evidence in the record to support this theory.  The plaintiff did not argue or present any evidence that he was actually distracted at work, that the defendant regarded him as distracted, or that the defendant took any adverse employment action against him in retaliation for any real or imagined distraction.  Although the three situations in which the 7th Circuit recognized viable ADA claims for associational disability discrimination are not exhaustive, the plaintiff in this case failed to advance any theory of associational discrimination that was supported by any evidence.  To the contrary, the record demonstrated that the defendant made ample efforts to accommodate the plaintiff's need to care for his grandfather.  The plaintiff failed to establish a valid claim of associational disability discrimination under the ADA.  He also failed to show that he suffered any tangible adverse employment action.  The district court correctly granted summary judgment in favor of the defendant on the plaintiff's associational discrimination claim.  The plaintiff failed to present material facts in dispute that would show that the defendant discriminated against him for his association with his grandfather or that he suffered any adverse employment action.  

The plaintiff's retaliation claim also failed.  A plaintiff may establish retaliation either directly or indirectly.  In order to make out a claim of retaliation, a plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse job action; and (3) there was a causal connection between the two.  One was to establish an inference of causation is through evidence that a similarly situated employee who did not engage in protected activity was treated more favorably.  Evidence of disparate treatment is not essential to a retaliation claim though; the critical point is to offer evidence that would allow a reasonably jury to conclude that the employer took the adverse job action because of the protected activity.  The plaintiff did not show that he suffered an adverse employment action as a result of his internal complaints to the defendant.  On the record, no reasonable jury could find that the defendant terminated his employment in retaliation for his complaints, whether to HR or to the EEOC.  After the plaintiff had taken a full year of leave, and a year after his EEOC complaint, the defendant informed him that he would be terminated unless he provided notice of his intention to return to work within two weeks.  He never responded.  The only possible conclusion is that it was his failure to respond that led to his termination, not retaliation for his complaints.