Before terminating or taking any other adverse action against an employee, employers must consider not only whether the employee is in a protected category, but also whether the employee’s friends or family are, too.
Lawsuits alleging discrimination or retaliation by association appear to be on the rise, an attorney warned attendees at the Society for Human Resource Management’s annual conference today.
“Five years ago, I hardly heard of any of these [cases] … but it looks like there are about a dozen of these right now,” said Joseph L. Beachboard, a shareholder in the Torrance, Calif., office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
The Americans With Disabilities Act includes a statutory provision specifically prohibitng discrimination based on “the known disability of an individual with whom the qualified individual is known to have a relationship or association.” And courts have interpreted similar prohibitions under Title VII of the Civil Rights Act. And a recent U.S. Supreme Court decision held that an individual who had never complained of discrimination could succeed on a retaliation claim when he was fired after his fiancee alleged gender discrimination.
To avoid claims of discrimination or retaliation based on association, Beachboard said employers should:
- update pre-termination and pre-disciplinary action checklists to consider whether an employee’s associates are in a protected class or engaged in a protected activity;
- consider adopting nonfraternization and nepotism policies; and
- document any performance problems as thoroughly as possible to establish that adverse employment actions were not a pretext for discrimination.