Foley & Lardner Labor and Employment Law Weekly Update (Week of July 25, 2011)

Foley & Lardner Labor and Employment Law Weekly Update (Week of July 25, 2011)

"Associational Disability Discrimination" - Yet Another Protected Category
Written by: Jeffrey S. Kopp

Everyone knows the Americans with Disabilities Act (ADA) (http://www.ada.gov/) prohibits employers from discriminating against employees because of their mental or physical disabilities. But did you know the ADA also prohibits discrimination against an employee based on the employee's relationships or associations with a disabled person? This broad reach of the ADA provides yet an additional basis for disability discrimination lawsuits.

In Stansberry v. Air Wisconsin Airlines Corp., (http://tinyurl.com/439uovk ) a case of first impression, the federal appellate court covering Michigan, Ohio, Kentucky, and Tennessee, addressed the infrequently litigated section of the ADA that prohibits associational discrimination. The court recognized that the law prohibits employers from "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." This section was intended to prohibit, for example, an employer from hiring a qualified applicant who the employer believes, without foundation, will have to miss work or frequently leave early to care for a family member who has a disability.

In the case, the employee, Eugene Stansberry, a former operations manager for a regional airline, was not disabled, but his wife had a rare and debilitating autoimmune disorder. The disease caused her tumors, lesions, swelling, a stroke, severe pain, dizziness, and vision problems. The employer, Air Wisconsin, was aware of Mrs. Stansberry's condition because of its involvement with insurance coverage issues under the employer's health plan in which the Stansberrys participated.

Stansberry was employed by Air Wisconsin for eight years until his discharge in 2007. Air Wisconsin claimed that the discharge resulted from poor performance, in particular Stansberry's failure to report violations of new employees he supervised to his manager, with whom he had strained relations. Air Wisconsin also claimed that Stansberry failed to stay within his budget and improperly supervised employees. The termination letter only cited the violations as the grounds for the termination. In contrast, Stansberry alleged that he was discharged because of his wife's disability and that he was terminated shortly after he complained about his wife's medical treatment not being covered.

The court affirmed the dismissal of Stansberry's lawsuit, finding that Stansberry could not establish a case of discrimination. To do so, Stansberry would have had to establish that the adverse employment action occurred under circumstances that raise a reasonable inference that the relative's disability was a determining factor in the decision. The court held that Stansberry failed to make such a showing, finding significant the evidence that Stansberry's performance was sub-par. Notably, the court recognized that even if Stansberry's poor performance at work was due to his wife's illness, the ADA would provide no protection. The associational discrimination section of the ADA does not entitle the employee to a reasonable accommodation on account of the relative's disability.

Stansberry demonstrates that employers must be very thoughtful and thorough in making discharge and other employment decisions involving employees with disabled relatives. When stating reasons for the termination, employers should be clear as to the basis for the terminations, and these should be well-documented. To avoid and defend associational disability discrimination claims, employers who are aware of an employee's relative's disability must ensure that the actions they are taking are not based on unfounded fears that the relative's condition will have a negative impact on the employee's performance. Rather, focusing on performance is the key to prevailing in associational disability discrimination claims.

Monitoring Employee Communications Requires Up-to-Date Consent
Written by: Sharon Mollman Elliott

Most employers have some sort of process for monitoring employee email or phone communications and a corresponding electronic resources policy to make sure that the employees know it. These policies are usually designed to protect employers from privacy claims by making sure that employees do not have a reasonable expectation of privacy in their workplace communications.

If properly worded, such policies also might provide employers with protection from substantial civil liability under the Federal Wiretap Act (http://tinyurl.com/39zskd). Historically, the Federal Wiretap Act has not been a concern for employers reviewing emails or messages stored on the employer's equipment servers (http://tinyurl.com/3ovszls ), because the act does not apply to stored communications. Technology, however, changes, and many information technology departments are now capturing employee communications with methods that do fall within the Federal Wiretap Act, such as real-time interception of calls (http://tinyurl.com/3e4oahh) or auto-forwarding of emails (http://www.ca7.uscourts.gov/tmp/9O10A597.pdf). These advances open the employer to potential liability unless the employee has consented to the interception.

Unfortunately, not all electronic resource policies provide that consent. For example, a policy reserving the right to monitor "phone or email messages stored on its voicemail or email systems" was held not to create consent (http://tinyurl.com/3e4oahh) to listen to telephone conversations as they occurred. Similarly, a policy presented once at the beginning of employment may not suffice to establish consent to email interception five years later.

Employers should update their electronic resources policy regularly to cover changes in the technology used to capture employee communications. Before you begin real-time monitoring, auto-forwarding, or other monitoring methods that go beyond the data already stored on your equipment, make sure that your electronic resource policy covers your method of interception and that your employees have acknowledged what you will be doing to monitor their communications. Accurately informing your employees of the type of monitoring used and getting annual acknowledgments will help protect you from unexpected claims of unlawful interceptions under the Federal Wiretap Act.

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