Do some of your employees’ spouses or children have serious (and expensive) health troubles? It may be tempting to offer suggestions about less-costly treatments—or even to send that employee packing. But don’t do it. As this new ruling shows, it’s illegal to discriminate against employees based on their relationship with a disabled person …
Case in Point: Phillis Dewitt was a nurse manager at Proctor Hospital in Peoria, Illinois. She was a rising star and received excellent evaluations. Her husband, Anthony, suffered from prostate cancer for several years.
The hospital, which was struggling financially, had a partially self-insured health care plan. Over a three-year period, the hospital was regularly notified of Anthony’s escalating medical costs.
At one point, a supervisor confronted Phillis about those high costs and suggested she consider “less expensive” hospice care over the current treatments of chemotherapy and radiation. On a separate occasion, with Phillis present, the supervisor held a meeting to discuss the hospital’s financial crisis and said the hospital would require “creative” cost cuts.
A few months later, Phillis was fired and marked as “ineligible to be rehired.” Her husband died the following year. She sued, alleging the firing was caused by “association discrimination,” which is unlawful under the federal Americans with Disabilities Act (ADA). The hospital argued Phillis was fired for insubordination. (Dewitt v. Proctor Hospital, 7th. Cir., 2/27/08)
How did this case end ... and what three lessons can be learned?
The 7th Circuit Court of Appeals sent the case to a jury, saying there was enough direct evidence of association discrimination to warrant a trial. The court said, “A reasonable juror could conclude that Proctor … was concerned that Anthony—a multi-year cancer veteran—might linger indefinitely.”
3 Lessons Learned … Without Having to Go To Court
1. Train about all types of disability discrimination. Every manager and supervisor must be education about the ADA, who it protects and how it prohibits discrimination based on relationships by association. The broad “association” provision of the ADA prohibits employers from discriminating against employees based on “the known disability of an individual with whom (the employee) is known to have a relationship or association.”
2. Remind supervisors: Don’t play doctor. The supervisor in this case was pretty much practicing medicine when she recommended that Phyllis’s husband discontinue chemo and sign up for hospice. Don’t ever go there.
3. Remember: Timing is everything. Courts aren’t stupid—they can put the pieces together. In this case, the court said the “the timing of Dewitt’s termination suggests that the financial albatross of Anthony’s continued cancer treatment was an important factor.” If you fire employees who’ve exercised their legal rights under law, you may not see them again at work—but you will see them in court.
Final note: Employees can prove association disability in two ways. The first is through direct evidence, as in this case. The second is through a four-part test. The employee must show:
1. She was qualified for her job.
2. She was subject to an adverse employment action, such as termination.
3. Her employer knew about her association with a disabled person.
4. The employer took the adverse action because of the expense associated with a disabled family member, the job distraction inherent in having a sick family member or prejudice against disabled people.
