Monday, October 25, 2010

Distraction Theory - ADA Association Provision

A loyal Lawffice Space reader asked me a question regarding last week's COTW dealing with ADA Associational Discrimination. To paraphrase:
Phil, you tell us the employer doesn't have a duty to accommodate under the ADA's association provision... yet the Plaintiff survived a motion to dismiss, claiming she was terminated for being late due to a medical emergency involving her daughter with a disability. So did the employer have to accommodate her or not!?
Excellent question! And being a man of the people, I will now provide the answer. In two words: Distraction Theory.

In Larimer v. IBM, 370 F.3d 698 (7th Cir. 2004), the Seventh Circuit defined three theories under which an employee may state a claim for association-based discrimination under the ADA. One such theory was labeled "distraction." An employee states a claim for "distraction" where he or she suffers an adverse employment action, such as firing, when:
[T]he 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, perhaps by being allowed to work shorter hours. The qualification concerning the need for an accommodation (that is, special consideration) is critical because the right to an accommodation, being limited to disabled employees, does not extend to a nondisabled associate of a disabled person.
It's not clear at what point a "distraction" reaches the point of requiring an "accommodation." The District Court in Magnus v. St. Mark United Methodist Church (aka the COTW), relied on Larimer, holding:
Plaintiff suggests a connection between her daughter’s disability and her termination by alleging that her absence from work on January 27, 2009, was due to her daughter’s medical emergency. This single incident, which could qualify as a distraction, occurred just one day prior to Plaintiff’s termination.
(emphasis added). This was sufficient for the pleading stage of litigation. Note that it "could" qualify as a distraction - the Court did not definitively resolve the issue.

For my Third Circuit (including Pennsylvania) readers: The Third Circuit has "noted" Larimer and its distraction theory, albeit in a footnote in a case not specifically addressing the issue. See Erdman v. Nationwide Ins. Co., 582 F.3d 500, 511 fn 7 (3d Cir. 2009).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.