The ADA not only protects those with disabilities, but it also protects those who have a relationship with someone known to have a disability. 42 U.S.C. § 12112(b)(4). Consider the following case study.
Emily took a job as an auditor with a bank soon after graduating from college. After seven years, the bank promoted her to vice president of Operations and Informations Systems. Three years of solid work performance later, Emily got pregnant. Shortly before her due date, she took leave under the FMLA. While she was on leave, the bank hired a consultant to restructure senior management positions. Emily gave birth to a baby girl with Down syndrome. Emily called the bank president, with whom she had a close working relationship. She told him about her daughter’s condition and said that she would need two more weeks of leave to recover fully from the delivery. During the conversation, Emily said she was afraid that the bank might eliminate her job because of the restructuring. The president assured her that she would always have a job with the bank, given that she was a star employee. That turned out not to be true.
The next day, the president attended a meeting with his leadership team and the outside consultant. The consultant recommended eliminating Emily’s position and combining it with another position that was currently not filled. Participants in the meeting agreed and decided they would post the position internally first. The president said Emily would be well qualified for the new position. At this point, a brash new vice president of finance said a female employee who reported to Emily would be good in the position. He added that she was younger and without children, and thus “cheaper.” The president said he was reluctant to let Emily go, given her strong work record. He also felt bad about firing someone who had just given birth to a child with Down syndrome. The young VP jumped in, saying, “Oh, man. She had a disabled child? Do you know how much that will distract her from work? I mean, I feel for her. But we have a bank to run.” The president thought for a bit and said, almost to himself, “Yes, I bet she will need a lot of time off in the coming years. Okay, but someone else has to take care of this. I can’t do it. And make sure we offer a good severance.”
The new vice president called Emily in the next day. He told her that her position was being eliminated due to the restructuring. Emily, stunned, asked whether she could apply for a different position in the bank. The VP said there was a new VP slot being created and she was welcome to apply, but she probably wouldn’t be a good fit, adding that the schedule would be inflexible and therefore incompatible with her need to take leave to care for her child. Emily responded that she didn’t know where he had gotten that idea; she had arranged child care and would not require any additional leave just because she had a child with special needs. The VP again said Emily could apply, but if she agreed not to, the bank was prepared to offer her severance, to include one year’s salary. Fighting to hold back tears, Emily said, “I don’t want severance. I want my job. I love what I do.” The VP, showing no emotion, said, “Right. Well, the deal’s on the table for forty-eight hours. No extensions. I suggest you take some time to think about your options.”
So, what were Emily’s options? Did the bank do anything illegal?
Yes, it did. The situation described above closely tracks what happened in the case Strate v.Midwest Bankcentre, 398 F.3d 1011 (8th Cir. 2005).
Essentially, the ADA association clause protects employees from illegal stereotypes (e.g., that an employee with a disabled family member cannot be an effective worker.) In Emily’s case, that is precisely what happened. The bank essentially fired her because senior management believed she would need time off to care for her daughter with Down syndrome. Yet, Emily had not said that she would need time off. In fact, she expressly told the brash young VP that she had arranged for child care and would not need time off. Thus, the only explanation for the bank’s action was that senior management believed otherwise. That is illegal under the ADA association clause.
What could Emily get if she sued and won? She could receive back wages to include the time that she was fired until she obtained a new job. She could ask for front wages, extending from the time that she won her case to some point in the future. This is assuming that she had been actively seeking work and had been unable to find a comparable job. Emily also could ask for emotional distress damages for the emotional pain that she experienced for being unlawfully fired. Given the bank’s particularly brazen behavior here, she might even win some punitive damages. If she won at trial, the bank would be on the hook to pay her attorney’s fees as well. Emily has a strong case and likely would win many of these damages.
Change some very important facts, and the situation becomes very different. Assuming the same facts but that, when Emily calls the bank president, she says, “You know, with my daughter’s condition, I’m going to need some time off during the day for doctors’ appointments. I’ll try to minimize the time away from the office and make up the work in the evening. It’s just something I’m going to have to do.” The next week, she’s fired. Does Emily still have a case?
Not under the ADA (though she might under the FMLA). This is an important distinction to make about the ADA. Under the ADA, an employer is required to consider making reasonable accommodations to an employee to allow her to do her job. This could include providing flexible work hours, as Emily suggests here. In contrast, the ADA does not require an employer to provide an accommodation to someone who is protected under the association clause, which protects those associated with a disabled person only from improper stereotyping on the basis of that association.
But here’s an issue for Emily: she won’t know for some time what her actual damages will be. Suppose that three months later, Emily finds another position that actually pays better than her previous job. Now she is not eligible to receive front wages, and she could win only three months of back wages. Sure, she could win emotional distress damages, but that may not translate into a significant sum unless she can show lasting emotional distress due to her firing. Let’s suppose that she spent a week feeling “down” and for two weeks would often cry for no apparent reason. But after two weeks, she resolved not to let the bank “win,” and, with renewed energy, set out to make a new life, which she did. This is great for Emily, but not so good for her emotional distress claim.
She likely would win something for it, but probably less than $10,000. That leaves punitive damages. Emily might well win punitive damages in this case, but these are often hard to win in employment cases, particularly in more conservative areas of the country. Still, she might hit it big if the jury is sufficiently angered. Even then, a court probably would reduce a large punitive damages award to make it proportional to her damages award. So, it is entirely possible that a year’s severance is more money than she would receive if she filed a lawsuit and won.
Plus, she would get the severance immediately. Getting to a jury trial in most federal courts would take well over a year and would involve the considerable inconvenience of slogging through a lawsuit. But a severance agreement would require Emily to sign a contract including language that the bank was admitting no wrongdoing, and it probably would require that Emily not disclose the terms of the severance.
These provisions are the reason that defendants settle. It allows the defendant to buy security and peace of mind, and, in this case, Emily’s silence. That’s tough medicine to swallow. If she goes to trial and wins, there would be no restrictions on Emily. She could say what she wanted, plus she would have the pleasure of seeing a jury punish the bank and its brash young VP for breaking the law.
So, Emily has a tough choice: fight for principle and the possibility of an award that would exceed the year’s severance, or take a sure thing that would provide immediate security for her family. No choice is wrong. It really comes down to what Emily wants out of the situation.