Associational discrimination occurs when someone is discriminated against because of their relationship with another person. Generally, this type of discrimination occurs in one of two situations:
- Associational Discrimination: an employer discriminates based on the employee’s relationship with someone in a protected class (for example, race, gender, religion, disability status); or
- Associational Retaliation: an employer discriminates or retaliates against an employee because of their relationship with someone who engaged in legally-protected conduct.
These protections help safeguard employees against discrimination or retaliation which the law may not otherwise prohibit. What laws protect employees against associational discrimination?
Associational discrimination cases can be brought under various laws. Cases are frequently litigated by family members of individuals with disabilities, since the Americans with Disabilities Act (ADA) explicitly prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. §12112(b)(4). California’s Fair Employment and Housing Act (FEHA) provides the same protections and safeguards as the ADA in relation to associational discrimination but is more expansive and covers other protected classes.
Associational discrimination claims can be brought under laws other than the ADA. For example, courts have held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of their associates’ race, gender, religion, and/or national origin. Even though Title VII does not explicitly prohibit discrimination by association like the ADA does, courts have found that Title VII does bar this type of discrimination.
In Holcomb v. Iona College, a federal appellate court explained the rationale for reading associational discrimination into Title VII. 521 F.3d 130 (2nd Cir. 2008). Holcomb involved a white basketball coach who was fired because his employer was unhappy that he was married to a Black woman. The court found that this fell within Title VII’s bar on discrimination, holding:
“The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”
Some laws that prohibit retaliation for protected activities also recognize and protect against associational retaliation. Where the statute doesn’t directly prohibit associational retaliation, courts have also given broad interpretations that favor protection for the associates of whistleblowers. For example, the anti-retaliation provision of Title VII states only that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge.” 42 U. S. C. §2000e–3(a). The Supreme Court held in Thompson v. North American Stainless that this also prohibited an employer from terminating a whistleblower’s fiancé, reasoning that this “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
This means that employees cannot suffer adverse actions simply because someone they associate with engaged in legally-protected activity, such as blowing the whistle. Employees who do suffer such actions may have a legal cause of action.
What types of relationships constitute an “association”?
An “association” can encompass a wide variety of relationships. Courts interpreting the relationship or association” language have construed it broadly, finding that it may include “a family, business, social or other relationship.” “Association,” however, is not a limitless term. Associational discrimination claims are generally analyzed like claims of direct discrimination. Usually, a plaintiff must establish a prima facie case of discrimination, including showing that they suffered an adverse employment action and that they can link it to a protected class or activity under the law.
The exact legal standard varies depending on the law under which the claim is being raised. Generally, courts impose a similar burden on associational discrimination cases as they do under other discrimination cases. For example, to establish a prima facie case of associational discrimination under the ADA or FEHA, a plaintiff must show that:
- they were qualified for the job at the time of the adverse action;
- they were subjected to an adverse action;
- they were known by their employer to have a relative or associate with a disability; and
- the circumstances around the adverse action give way to a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision.
If you believe you’ve been the victim of associational discrimination, please schedule a consultation with Jay S. Rothman & Associates in order to better evaluate your situation and whether you’re entitled to protection under California’s Fair Employment and Housing Act.