We’ve all heard of employees having an advantage in corporate America because of “who they know.” Whether that’s true or not, the Equal Employment Opportunity Commission (EEOC) has noted that there is a trend of employees getting ahead in discrimination lawsuits because of “who they know.”
Most of you know you can’t treat employees differently because of their age, gender, race, religion, disability, or any other protected class under federal and state laws. But what about a situation in which you’re accused of treating an employee differently because you don’t like the fact that he’s associating with someone in one of those classes? Or what if an employee accuses you of discriminating against him because of a relative’s health condition?
Employees have had increasing success lately with those types of claims. The fact that such claims are on the rise nationwide should be cause for concern. Let’s take a closer look at what we’re talking about.
Basics
Today, most claims of bias based on “who an employee knows” are called “association” discrimination claims. Although most antidiscrimination laws don’t specifically address association discrimination, at least one federal law — the Americans with Disabilities Act — does. For that reason, along with rising health care costs in recent years, it isn’t surprising that a lot of association discrimination claims grow out of an employee’s accusation that his employer treated him unfairly because of the high cost of providing health care to a relative.
That isn’t the only setting in which an association discrimination claim can occur, however. Lately, more employees are filing these claims based on their marriage to, engagement to, or even simple association with someone. In recent years, courts have been increasingly receptive to all of those arguments. In fact, association discrimination complaints filed with the EEOC rose by about 25 percent in 2007.
Pitfalls
Obviously, association discrimination claims are dangerous for employers. Not only do you need to be worried about the way you treat your employees, but you may also have to watch how you treat workers because of their association with relatives or others in a protected class.
Association discrimination claims based on disability are particularly tough for employers because they can proceed on the simple basis that you were aware that an employee’s relative had a disability. In many close-knit workplaces, it isn’t uncommon for employees to know about the health conditions of their coworkers’ families. How many of us have signed a “get-well” card for a coworker’s ill family member?
You should also be concerned about how far association discrimination claims may go. For example, could a terminated female employee sue because her employer knew she once dated a Hispanic man? Can a discharged employee succeed on a discrimination claim merely because his employer saw him occasionally talking outside the workplace with his good friend who happens to be HIV-positive? Those examples seem extreme and they may not actually succeed in the end, but there’s no doubt that the general landscape in discrimination law seems to be trending toward these types of claims.
Keep Your Chin Up
Even though association discrimination cases are on the rise, not everything is gloom and doom for employers in this area. First of all, employees still need to establish some inference that their “association” with someone in a protected class was the reason for the alleged discriminatory treatment. That isn’t easy in many cases.
Moreover, you can make it harder for an employee to succeed in establishing that connection if you document your employment decisions properly, enforce your policies consistently, and treat your employees fairly. Those simple actions — things you should be doing anyway — can go a long way toward eliminating baseless association discrimination claims before they’re filed.
Bottom Line
Association discrimination lawsuits are clearly on the rise. Employers need to be aware of them and try to minimize their risk by being consistent when making employment decisions and documenting those decisions appropriately. An employer that doesn’t adopt that approach could end up being the subject of an association discrimination lawsuit. Surely that’s not an association any employer would want.
Excellent article on what is now identified as “association discrimination”. However, this type of discrimination is not new. I know of one prominent example that occurred in the late 1980’s in a local government employment setting. Black and white females co-workers established a friendship that involved among other things eating lunch together regularly.
The department they worked in was of all places human resources!! Well as the story goes the white female was called into the HR managers office and asked why she was associating (specific word used) with the black female. “All they (blacks) do is lie and steal” is the alleged statement made by the HR manager to the white female employee.
The HR manager made the erroneous assumption the white female had the same raco-terrorist mindset he did. She informed the black female of the conversation. Subsequently the white female feeling the pressure transferred out of the department because she was also getting “association discrimination” from other white female co-workers.
People of diversity are exposed as a way of life to all the various and insidious manifestations of discrimination saturating American society from birth. So while some would like to believe “association discrimination” is a new phenomenon, for those in the know it’s old hat and par for the course. At least as it is relevant to race discrimination.