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  • December 08, 2020

    Seventh Circuit Expands Associational Disability Discrimination During Pandemic

    Since 2004, the Seventh Circuit has recognized three forms of associational disability discrimination. Storm Larson discusses a recent decision that indicates the Seventh Circuit may be open to new theories of associational disability discrimination.

    Storm Larson

    Associational disability discrimination happens when a covered employer discriminates against a nondisabled person for having a relationship with a person who has a disability.

    Since 2004, the Seventh Circuit has recognized three forms of associational disability discrimination. But earlier this year, the Seventh Circuit held that it is open to new theories of associational disability discrimination.

    Scope of Associational Discrimination & Applicable Law

    Most are aware that the Americans with Disabilities Act (ADA) protects individuals who have disabilities in covered workplaces.1

    In addition, the ADA also prohibits “associational discrimination,” discrimination against able-bodied individuals.2 The ADA states that a covered entity may not “exclude or otherwise deny 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[.]” For the purposes of this article, these will be called “associational claims.”

    The Seventh Circuit’s seminal decision on associational claims is Larimer v. Int’l Bus. Mach. Corp.3 In that case, the Seventh Circuit held that associational claims arise in three circumstances. The court explained the specific circumstances under which associational claims arise as follows:

    [E]mployee’s ‘[relative] has a disability that is costly to the employer because the [relative] is covered by the company’s health plan.’ The second, ‘disability by association,’ occurs when an employer fears that the employee may have become infected with a disease because of the known disease of an associate of the employee. The third, ‘distraction,’ arises when ‘the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation.’4

    Associational Discrimination, Revisited

    Associational claims are infrequently litigated, so developments are noteworthy.

    Earlier this year, in Pierri v. Medline Industries, Inc.,5 the Seventh Circuit revisited the scope of associational claims. In judicial dictum, Judge Diane Wood, writing for a three-judge panel, stated that Larimer’s list of scenarios was not exhaustive, and that the court is open to novel theories.6 Notably, this dictum was not central to resolving the case, and the court clearly went out of its way to make this invitation.

    Given that we are in the midst of a pandemic that may have serious medical consequences for many individuals, we might expect new litigation on COVID-19’s intersection with associational claims.

    Storm Larson Storm Larson, U.W. 2018, is an associate attorney at Bell, Moore & Richter, S.C., in Madison, where he practices in labor and employment law.

    A brief recitation of the facts of Pierri is warranted for context. Pierri involved a workplace dispute between Pierri, a chemist, and his supervisor, Tyler. Pierri began working at Medline Industries, Inc., in 2011, and earned several promotions and always received good performance evaluations. Sadly, Pierri’s grandfather developed liver cancer in 2015. This is when his workplace issues arose. In response to the diagnosis, Pierri asked his supervisor to permit him to work four 10-hour shifts a week instead of the five eight-hour shifts that he had been working. Pierri explained that the altered schedule was necessary for him to care for his ailing grandfather.

    Tyler agreed and made the change. Six months later, however, Tyler told Pierri that his work performance had suffered, and that he would have to return to the original work schedule. Pierri protested and discussed his options with Medline’s Human Resources (HR) Department. He learned that he could care for his grandfather using leave under the Family and Medical Leave Act (FMLA) which was approved for one day of leave each week.

    According to Pierri, Tyler began harassing him after he began using leave. In response, Pierri filed several complaints with the HR department, but the harassment continued. Pierri then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

    Relevant for this article’s purposes, Pierri alleged that Medline had discriminated against him in violation of the ADA for his association with his grandfather. Specifically, he proceeded under the distraction theory announced in Larimer.

    The district court granted summary judgment to Medline, and the Seventh Circuit affirmed. The Seventh Circuit reasoned that there was no evidence that Pierri was distracted at work or that Medline ever considered him distracted.

    While Pierri could be classified as a run-of-the-mill summary judgment disposition, it remains noteworthy for Judge Wood’s dictum. To date, no federal court has cited Pierri in connection with a novel theory of associational discrimination which is not already covered under Larimer.

    That may be about to change given the COVID-19 pandemic, for the reasons discussed next.

    COVID-19 & Associational Disability Discrimination

    The COVID-19 pandemic raises significant questions about how employers can keep their businesses operational, safe, and compliant with the ADA.

    Nine months in, the EEOC and Department of Labor have left important questions unanswered. For example, federal agencies have resisted classifying COVID-19 as a “disability” under the ADA. This may be because it affects individuals in drastically different ways. While many do recover from the SARS-CoV-2 virus with mild symptoms in a matter of weeks, there are reports of “long haul” infections which linger for months and seriously impact the function of the brain, kidney, liver, heart, and lungs.7 Breathing and circulatory function are both considered “major life activities” under the ADA.8

    So how might COVID-19 intersect with an associational claim? The short answer is that it probably does, but it remains unclear whether a claim would actually succeed. Recall from Larimer that the ADA prohibits associational discrimination even “when an employer fears that the employee may have become infected with a disease because of the known disease of an associate of the employee.”9 Obviously, the court was likely referring to socially stigmatic diseases such as HIV – not a deadly, highly contagious respiratory virus.

    Nonetheless, COVID-19 could fit Larimer’s second prong, and so it is worth exploring how COVID-19 may intersect with the ADA. After Congress passed the ADA Amendments Act (ADAAA) in 2008, courts in the Seventh Circuit have recognized that certain temporary impairments can qualify as disabilities if they are sufficiently limiting.10 Severe cases of COVID-19 which result in monthslong lung or circulatory issues could arguably meet that definition.

    To date, the EEOC has issued limited guidance on COVID-19 and associational claims, and none of it resolves whether COVID-19 may trigger a claim. For instance, the EEOC has explained that it is not associational discrimination to deny an employee’s teleworking request because they have a family member with an underlying medical condition which may put them at a greater risk of death from COVID-19 exposure.11 This says nothing about whether association with a person who has COVID-19 or suffers from lasting symptoms triggers a claim.

    However, the EEOC has made clear that employers are barred from inquiring about family members’ infection status. According to the EEOC, the Genetic Information Nondiscrimination Act (GINA) prohibits covered employers from asking employees who physically come into work whether their family members have COVID-19 or have COVID-19 related symptoms. 12

    Thus, an adverse employment action that occurs based on that inquiry would probably fall under GINA and not the ADA. To be clear, employers may ask generally about an employee’s exposure status.13

    If this analysis leaves you unsatisfied, you are not alone. We simply must wait for the courts to resolve how Larimer and the ADA intersect with associational claims.

    Based on the available case law and guidance, it appears that an associational claim could be stated, but much will likely depend on the facts of the given case and the nature of the infection and associated symptoms.

    Conclusion: A Timely Consideration

    Associational claims have been traditionally litigated less than other ADA claims. That may be about to change, given the strange nature of COVID-19 and how it impacts individuals differently. The Seventh Circuit’s expressed willingness to consider novel claims of associational discrimination in Pierri is thus timely for those curious about the scope of associational claims.

    This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.


    1 See 42 U.S.C. § 12112(a).

    2 See 42 U.S.C. § 12112(b)(4).

    3 Larimer v. Int’l Bus. Mach. Corp., 370 F.3d 698 (7th Cir. 2004).

    4 Id. (internal citations omitted).

    5 Pierri v. Medline Industries, Inc., 970 F.3d 803 (7th Cir. 2020).

    6 Id. at 807. (“We should note at this juncture that the three situations we identified in Larimer were not meant to be exhaustive.”)

    7 See Julie Rehmeyer, Jennifer Brea, and Brian Vastag, “With long-haul COVID-19, important advice for patients, doctors and researchers,” Washington Post, Oct. 24, 2020.

    8 29 C.F.R. § 1630.2.

    9 Larimer, 370 F.3d at 700.

    10 See, e.g., Modjeska v. United Parcel Service Inc., 54 F. Supp. 1046, 1060-61 (E.D. Wis. 2014).

    11 SeeWhat You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” EEOC Technical Assistance Questions and Answers.

    12 Id.

    13 Id.

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