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When employee’s partner has difficult pregnancy, be prepared to offer ADA accommodations

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in Discrimination and Harassment,Human Resources

Here’s a novel legal theory of disability law that may spell trouble for some employers: Criticizing and punishing a worker whose partner is experiencing a complicated, disabling pregnancy may be association discrimination under the ADA.

Recent case: Anthony Marchioli was newly hired by Garland Co. as a sales representative in July 2009. Early on, he received excellent ­reviews. Then in early October, Marchioli told his supervisor that his girlfriend was pregnant and asked for permission to take a Fri­day afternoon off to help her choose a doctor.

Marchioli claimed that immediately after the announcement, his boss began criticizing his work and suggested that he should quit. The supervisor even put his thoughts in writing and gave them to Marchioli as part of a negative interim review.

The appraisal ended with, “I’m not here to tell you how to live your life but the situation with your girlfriend spells big trouble to me. The distractions you are going to have over the next 10 months are going to be too much ... The party is over for Anthony. You need to decide what you want to do. I intend to monitor very closely your progress from here on out. If you do not want to work under that kind of scrutiny, leave now.”

Marchioli didn’t quit. In fact, by the end of October, he was one of only two people in group who had met sales quotas.

Still, in mid-­November, Garland fired him.

Marchioli sued, alleging he had been fired for his association with a disabled individual and that his former employer fired him because it believed his pregnant girlfriend would be a detriment to his job.

The court said that such lawsuits are possible—but only if the person the employee “associates” with is, in fact, disabled. Because Marchioli’s girlfriend by all accounts had a normal pregnancy, his lawsuit was dismissed.

However, the court said the outcome might have been different if the pregnancy had been complicated or required more than ordinary pregnancy care. (Marchioli v. Garland Company, No. 5:11-CV-124, ND NY, 2011)

Note: Interestingly, the court also rejected one of Marchioli’s related claims—pregnancy discrimination. He argued that he had essentially been fired because he was going to be a new parent. His attorneys compared his case to that of women who were told by their employer that they couldn’t hold a dangerous job because if they became pregnant, their unborn child might suffer harm. In that case, the U.S. Supreme Court said the employer discriminated against the women on account of sex.

But this court said Marchioli’s situation was not analogous because his employer didn’t single out women for poor treatment. Marchioli was merely going to be a new parent. In that sense, he was similarly situated to any of the company’s female employees who might get pregnant. That could not be sex discrimination because women and men alike had equal opportunity to be treated badly.

Final note: The FMLA wasn’t a factor in this case. Marchioli wasn’t yet eligible for FMLA leave.

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