Assistant Professor of Law – UNT Dallas College of Law
SUMMER 2017 ISSUE:
AMERICANS WITH DISABILITIES ACT (ADA)
Professor Michael Maslanka is an Assistant Professor of Law at UNT Dallas College of Law and is widely regarded as one of the top employment-law practitioners and authors in Texas. The following is a transcript of the related video where Professor Maslanka discusses the Americans with Disabilities Act, focusing on “associational” disabilities. He also explains how to file a complaint with the Equal Employment Opportunities Commission and the Texas Workforce Commission.
Today, I would like to talk about unlawful discrimination against an employee who is associated with a person considered disabled under the Americans with Disabilities Act. This is called the ADA for short. The ADA became law in 1990 and prohibited discrimination against those with disabilities. The ADA got a major facelift from congress in 2008. The law covers 40 million Americans. i Now, both the 1990 and 2008 versions contain a prohibition against discrimination against an employee who is associated with a person who has a disability. The ADA states:
“It is unlawful for a covered entity to exclude or deny equal jobs or benefits to or otherwise discriminate against an employee because of a known disability of an individual with whom the employee is known to have a family, business, social or other relationship association.”
Let’s translate that statement; what is a “covered entity?” That is an employer with 15 or more employees. What does the statement mean when it says, “a person with a disability?” That’s one of the 40 million people we talked about earlier; and disability covers everything from cancer to infertility to heart ailments and so much more. It is important to know that under the law, the employer must know that the employee is associated with such a disabled person. Now, what does “association” mean? Notice how broadly the law is written. The association can be based on all sorts of relationships: family, business, or social. And here’s the whopper that Congress put in the law: the law also protects other relationships or associations. That covers a lot of territory and Congress meant it to. When the law was proposed, Congress rejected an effort to limit association to relatives by blood or marriage or adoption. So the idea of association encompasses, for example, discrimination against an employee who does volunteer work with an AIDs patient based upon fear that the employee poses a risk to fellow employees because of that situation.
Now, what situations most often arise that trigger the protections of the law? There are three. The first situation: when an employer fires an employee or takes discriminatory action against them because the employee had a seriously ill family member, and the employer is concerned about increased medical premiums.
The second situation is called the distraction theory. Now, the distraction theory is triggered when an employer takes an adverse employment action against an employee because the employer assumes that the employee won’t be able to concentrate at work or that the employee will miss too much work tending to the needs of a family member. Here’s the bottom line: assumptions are not allowed.
The third situation is triggered when the employer believes that the employee will catch the same disease or ailment with whom they are associated.
Now, there are a few things to keep in mind. First, an employee is still required to satisfy the attendance and tardiness policies of their employer. Absence due to caring for the disability and the person with the disability is not protected, even though the employee may be able to use the Family Medical Leave Act in certain circumstances. Second, keep in mind that the employee is not entitled to any accommodations to take care of the person with a disability.
What do you do if you think your employer has violated the law? You absolutely must file a complaint with the Equal Employment Opportunity Commission, or EEOC, within 300 days from the date that you believe you were the subject of discrimination. Within 180 days, the Texas Workforce Commission will investigate and often attempt a resolution. The key point: you must file a complaint with one of these agencies before you bring a lawsuit.
The final point is very important: as we teach our law students, make sure you don’t just understand the law, but why we have the law. Why is this law? Congress understood that the disabled often live with unnecessary shame and fear because of their disabilities, so they wanted to make sure that their support networks remained intact.
1 Family Medical Leave Act of 1993, (2016)
2 Relationship or Association with an Individual with a Disability, (2016)
3 Texas Workforce Commission, How to Submit an Employment Discrimination Complaint, (Feb. 24, 2016)
4 Texas Labor Code
5 Equal Employment Opportunity Commission, Filing a Charge of Discrimination