Thursday, May 8, 2008

10th Cir. Lets ADA Association Discrimination Claim Go Forward

Shakyscales Here is another ADA association discrimination case from the Tenth Circuit, Trujillo v. Pacifica Corp., No. 06-8074 (10th Cir. May 7, 2008), about a couple who worked for a company in Wyoming for a long time and claimed that there were fired because of healthcare costs associated with their son's illness.  Their son had a brain tumor and eventually died from his illness, but his healthcare costs were over $ 60,000 before he died.  A mere two weeks after their son suffered a relapse of his cancer, both parents were fired by the company based on alleged timekeeping infractions.

The couple sued under ERISA and the associational discrimination provisions of the ADA.  Under association discrimination, a covered employer is not permitted to discriminate against employees who have an association with a family member with a qualified disability (we recently wrote about this type of claim in the DeWitt case in the 7th Circuit, in which Judge Posner had a provocative concurrence.). In DeWitt, the case was allowed to proceed because their was sufficient evidence that the employer engaged in association discrimination, but Judge Posner asserted that, "But if the disability plays no role in the employer’s decision—if he would discriminate against any employee whose spouse or dependent ran up a big medical bill—then there is no disability discrimination. It’s as if the defendant had simply placed a cap on the medical expenses, for whatever cause incurred, that it would reimburse an employee for. This appears to be such a case."

The district court, applying the McDonnell Douglas pretext framework to the case, found that, "the Trujillos
failed to raise a reasonable inference that the disability of Charlie was a determining factor in PacifiCorp’s decision to terminate them."  The 10th Circuit disagreed with the district court's formalist expense approach (like the one Judge Posner had championed), and found that, "[u]nder the totality of the circumstances approach, the Trujillos raised the necessary reasonable inference of discriminatory motive to establish a prima facie case of association discrimination . . . . With this evidence, the Trujillos have established a prima facie case of association discrimination in the expense category."  The appellate court also found there was sufficient evidence of pretext for the claim to go forward.  Interestingly, the 10th Circuit completely ignored Judge Posner's concurrence in DeWitt.

And I think this is absolutely right giving the temporal proximity between the decision to terminate both parents on what appears to be a trumped up charge mere days after the child's cancer relapse.  (Gee, another sensitive employer).  Indeed, this is exactly the type of case for which the association discrimination provisions of the ADA were enacted.

On the ERISA claim,  the couple brought a Section 510 discrimination claim alleging that their rights to benefits were interfered with by the company when they were terminated.  Based on the same inferential discrimination evidence for the ADA claim, the ERISA claim was also allowed to go forward.

In all, I'll repeat what I said in my last association discrimination post:

Disability discrimination is not just based on prejudice against one's disability for let's say distaste or distraction on the one hand, and the cost associated with the disability on the other.  It is usually a combination of such factors.  Indeed, it is not too far-fetched to believe that much of the bias against individuals with disabilities (and those that support them) is caused to a considerable degree because of the vast expense sometimes associated with having a disability and the consequent belief of others that those with disabilities and their associations are getting an unfair advantage. In other words, I just don't see expense discrimination being a category, separate and apart, from disability discrimination at all.

Hat Tip: Howard


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