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Using the ADA for Parents of Children with Disabilities
Authors: Frank E. Stepnowski
This fact sheet is available from the Stepnowski law firm.
Here is the information:
While most people know that the Americans with Disabilites Act (ADA) protects those with disabilities from discrimination in employment, recent court cases have extended the protection to parents of children with disabilities. For example, if a parent of a child with cerebral palsy has to leave early to care for the child, the employer may not retailiate against the parent. The protections of this law are limited, but can be worth investigating.
In a little-used aspect of the ADA, the law prohibits employers from discrimination against employees who have an "association" with someone with a disability. 42 U.S.C. sec. 12112(b)(4). This law would prohibit a discrimination against “a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” Thus, a parent has a relationship with a child with a disability.
Get 'er done
In two recent cases from the Seventh Circuit Court of Appeals in Chicago, the court noted that an employer cannot fire, demote, or harass a parent because the employer thinks that parent may be "somewhat inattentive" during work hours. Employees who are distracted by family needs, but still manage to get the job done without accommodations, are protected. Larimer v. IBM, 370 F.3d 698 (7th Cir. 2004).
No right to accommodations:
In Overley v. Covenant Transportation (6th Cir. April 27, 2006), another court noted the protections are restricted. Unlike a claim brought by a disabled person, an employer is not required to reasonably accommodate an employee based on her association with a disabled person. 29 C.F.R. Pt. 1630, App. (§ 1630.8) [footnote]; Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084-85 (10th Cir. 1997). [See Senate Report at 30; House Labor Report at 61-62; House Judiciary Report at 38-39.] Thus a parent cannot claim that an employer discriminated against her by not granting her sufficient time off or allowing her to modify her schedule so that she could care for her daughter. An employee who cannot meet the attendance requirements of her job is not protected by § 12112(b)(4). See Tyndall v. National Education Centers., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (reaching this conclusion by analyzing the statute’s legislative history and governing regulations). Courts have surmised that an employee would be protected under the statute if the employee was only distracted at work, but did not require a reasonable accommodation, Larimer, 370 F.3d at 700, or if the employer’s decision was based solely on an unsubstantiated belief that the employee would have to miss work because of the association, Tyndall, 31 F.3d at 213.
Under a test developed by the Tenth Circuit, a plaintiff can make out a claim under § 12112(b)(4) by showing that:
she was qualified for the position;
she was subject to an adverse employment action;
she was known to have a relative with a disability; and
the adverse employment action occurred under a circumstance that raises a reasonable inference that the disability of the relative was a determining factor in the decision.
-- Taken from: http://www.stepnowskilaw.com/ADA-Parents.html
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