Unbeknownst to many and rarely litigated, associational discrimination is actually an express cause of action under the Fair Employment and Housing Act (FEHA). (Calif. Gov. Code §12926(o)). Among classes protected from employment discrimination by FEHA such as race, national origin, disability, national origin, religion and sex are those “associated with a person who has, or is perceived to have, any of those characteristics.” (Id.)
The classic case of associational discrimination is when a mother or father discloses to her employer that she/he has a disabled child at home. (Ennis v. National Assoc. of Business & Educ. Radio, Inc., (4th Cir. 1995) 53 F.3d 55, Tyndall v. National Educ. Ctrs., Inc.,(4th Cir. 1994) 31 F.3d 209; O’Connell v. Isocar Corp. (1999) 56 F. Supp. 2d 649.)As a result, the employer may wrongfully discriminate against the employee because the disabled child was covered under the employer’s healthcare plan and thus the employee has become more costly to the employer. Or, the employer may fear that the employee will contract the disability as there may be a genetic component. Or, the employee may have been distracted from their work because of the disabled child. So long as the employee was not so distracted that they couldn’t otherwise perform their work to the satisfaction of the employer, none of these reasons justify an employer’s discrimination against his employee.
California has not gone so far as to require that an employer reasonably accommodate and employee based on that employee’s association’s disability, however. (Castro-Ramirez v. Dependable Hwy. Express Inc., 2 Cal.App.5th 1028, 1039-40 (2016)) Thus, while an employer has a duty to reasonably accommodate a disabled employee so that he/she can perform the job, the employer does not have to accommodate an employee’s caretaking duties. Of course, if caretaking duties for a close family member requires a specific and limited time off from work rather than an ongoing obligation, eligible employees can look to other areas of the law such as the Family Medical Leave Act (federal) or California Family Rights Act.
Equally interesting as the classic case of associational discrimination are the outlier cases. For instance, given the hot topic of gender/pregnancy discrimination, one could foresee an avalanche of future cases that feature Dads who were discriminated against for trying to take or for taking paternity leave.