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Noting that plaintiff's claim arises "under an infrequently litigated section of the Act, which this court has never addressed in a published opinion," the court quoted the Act, which prohibits "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." The court then noted the legislative history, which included the statement that not hiring somebody who the employer assumed would have to miss work or leave work early to care for a disabled spouse is a violation, but that if the employee is hired and "violates a neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason or the absence or tardiness is to care for the spouse."

In determining how the "association discrimination" claim would likely arise, the court reviewed other decisions outlining three principal areas:

1. "expense" theory related to the cost of a disabled spouse covered under the employer's health plan; 
2. a "disability by association" theory where the employer fears the employee may contract the disability of a spouse; and 
3. the "distraction" theory based on employees being inattentive due to association with a disabled person. In this case, the plaintiff had abandoned an "expense" theory and pursued a "distraction" theory.

Addressing the standard for a prima facie case of associational discrimination, the court adopted the formula that plaintiff must demonstrate that: "(1) the employee was qualified for the position; (2) the employee was subject to an adverse employment action; (3) the employee was known to be associated with the disabled individual; and (4) the adverse employment action occurred under circumstances that raise a reasonable inference that the disability of the relative was a determining factor in the decision." Then addressing the facts, the court found that plaintiff could not demonstrate the fourth prong since "the record is replete with evidence that [plaintiff] was not performing his job to Air Wisconsin's satisfaction and devoid of evidence to suggest that his discharge was based on any unfounded fears that his wife's illness might cause him to be inattentive or distracted in the future." Further, the court noted that the Company had been aware of his wife's illness for many years and had never taken any adverse action, undercutting the inference that plaintiff's termination was based on unfounded fears that his wife's disability might cause him to be inattentive at work.

Alternatively, the court also found that plaintiff's poor performance was a legitimate non-discriminatory reason for Air Wisconsin to terminate him in any event. In response to an argument that his supervisor had "lied about the reason for terminating" him, that still "does not show that Air Wisconsin terminated [him] on account of his wife's disability." And finally also, the court stated that "while Stansberry's poor performance at work was likely due to his wife's illness, that is irrelevant under this provision of the Act. Stansberry was not entitled to a reasonable accommodation on account of his wife's disability [since there is no such requirement under the Act]."

While such claims are comparatively rare, it is clear from the activities of the Equal Employment Opportunity Commission over recent years that increasing attention is being placed on discrimination against caregivers and others associated with persons with disabilities. (See Questions and Answers About the Association Provision of the Americans With Disabilities Act.) In addition, earlier this year the United States Supreme Court addressed relational discrimination in the Thompson v. North American Stainless case where the plaintiff's fiancé was terminated in alleged retaliation for plaintiff having complained of sex discrimination, resulting in a holding that such discrimination is indeed actionable (and reversing the Sixth Circuit's decision to the contrary). Accordingly, all employers will want and need to remain alert to the possibility of such claims and to handle appropriately personnel situations involving employees who have caregiving responsibilities for spouses or other close relatives who may have disabilities (as now defined under the more expansive provisions of the Americans with Disabilities Act as amended effective January 1, 2009).

In a 2-1 decision, a three-judge panel of the Sixth Circuit reversed, holding that “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer’s action.” The Court included the fiancé of an employee filing an EEOC charge in the newly-expanded protected class. In reaching its decision, the Sixth Circuit acknowledged that the plain language of Title VII does not support associational retaliation claims. The Court nonetheless ignored the text and looked to the “plain purpose of the statute,” reasoning, based on language in U.S. Supreme Court decisions, that the statute is intended to protect against any retaliatory action that might “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” (Quoting the U.S. Supreme Court’s decision in Burlington Northern and Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006).) 

The full Sixth Circuit agreed to re-hear the case and vacated the decision of the three-judge panel. The Court reasoned that, because Thompson did not engage in any protected activity of his own (by making a complaint of Title VII discrimination or harassment or by testifying, participating in, or assisting in an investigation of another’s complaint), he could not state a claim for retaliation under Title VII. The en banc Sixth Circuit relied on the plain language of Title VII in finding that actual protected activity is required for a retaliation claim—in contrast to the three-judge panel’s decision that ignored the plain language of the statute. The Court found that not recognizing associational retaliation claims was consistent with the purpose of the statute because the retaliation is still actionable if the retaliated-against person actually engages in protective activity. In addition, the Court distinguished the recent Supreme Court decision in Crawford v. Metro Government of Nashville and Davidson County, which reversed the Sixth Circuit and held that the opposition clause did not require active, consistent behavior, by stating that Crawford involved involuntary testimony while Thompson did not engage in any protected activity at all.

This case should be seen as a victory for all employers. Retaliation is certainly one of the most dangerous and difficult employment law claims to avoid, especially when the complaining employee remains employed after the protected activity. This decision limits the scope of employees who could make a retaliation claim to the employee who actually engaged in protected activity—rather than the employee and the complaining employee’s sibling, parent, spouse, or fiancé. It should be noted that a petition for certiorari has been filed with the Supreme Court.