Adverse Employment Actions Based on Associational Disability Discrimination
Originally published in the September/October issue of The Florida Bar Journal.
We have all heard the sayings about our choices, or lack thereof, of the people in our lives: “You can pick your friends, but you can’t pick your relatives”; “You’ll be known by the company you keep”; and “Keep your friends close but your enemies closer.” Yet in this world where many people’s online lives reveal more to others than ever before, including current and potential employers, applicants, employees, and employers should all be aware of how such associations might impact the employer-employee relationship. In few areas is this more true than when association with someone who is disabled can influence decisions in the workplace. This article explains the protections and limitations of the Americans with Disabilities Act (ADA) associational disability provision, and analyzes the differences between the ADA as compared to the Florida Civil Rights Act (FCRA) with respect to disability discrimination.
Most claims under Title I of the ADA1 are asserted by applicants or employees alleging that employers discriminated against them on the basis of their disabilities.2 But in addition to those claims, under the ADA, qualified applicants or employees can assert claims against employers for discriminating against them because of the known disability of an individual associated cwith or related to the applicants or employees.3 The provision of the ADA that authorizes such claims is commonly referred to as the “association provision.” Although the association provision offers protection against discrimination to qualified applicants and employees regardless of whether the applicants or employees have a disability, the protections afforded under this provision are not as broad as the protections afforded to disabled applicants and employees. Moreover, although the ADA expressly prohibits associational disability discrimination through its association provision, the FCRA4 does not contain a comparable association provision. In fact, its language appears to preclude such a claim.
The ADA’s Associational Disability Discrimination Prohibition
The ADA is a federal law that makes it unlawful for covered employers5 to “discriminate against a qualified individual on the basis of disability.”6 The quoted phrase is not limited to discrimination based on an applicant’s or employee’s disability. In fact, the associational provision of the ADA expressly states that “discriminat[ion] against a qualified individual on the basis of disability” encompasses “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.”7 In its regulations, the Equal Employment Opportunity Commission (EEOC) interprets the association provision as not only prohibiting employers from “exclud[ing] or deny[ing] equal jobs or benefits” under those circumstances, but also from “otherwise discriminat[ing]” against qualified applicants or employees because of their association with an individual the employer knows to have a disability.8 The EEOC’s regulation also expands the “relationship or association” language of the ADA’s association provision by stating that the relationships and associations protected by the ADA can be “family, business, social, or other[wise].”9 Although there are multiple types of relationships that may be protected by the association provision, the courts have found that casual associations with disabled individuals are not protected.10
Because direct evidence of discrimination is rare,11 most plaintiffs attempt to establish their associational disability discrimination cases through circumstantial evidence. In the specific context of associational disability discrimination cases, most federal circuit courts, including the 11th Circuit, use a modified version of the McDonnell Douglas test first adapted by the 10th Circuit in Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1085 (10th Cir. 1997). Under that test, in order to establish a prima facie case of associational disability discrimination, a plaintiff must show 1) he or she was subjected to an adverse employment action; 2) he or she was qualified for the position at the time of the adverse employment action; 3) the employer knew that a relative or other associate of plaintiff was disabled; and 4) the adverse employment action occurred under circumstances that raise a reasonable inference that the relative’s or associate’s disability was a determining factor in the employer’s decision.12
If a plaintiff establishes a prima facie case, the burden shifts to the employer to proffer a legitimate, nondiscriminatory reason for its adverse action.13 The employer’s burden is only one of production; it does not need to persuade the court that it was actually motivated by the stated reason.14 If the employer proffers a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff to show that the stated reason is not the true reason for the adverse action, but was a pretext for intentional discrimination.15 At that point, the trier of fact may consider evidence used to establish the prima facie case and inferences that may be drawn from such evidence in determining whether the employer’s explanation is a pretext for discrimination.16 Pretext can be shown in various ways, including disparate treatment of similarly situated employees, procedural irregularities, and other weaknesses, inconsistencies, or implausibilities in the employer’s stated nondiscriminatory reason.17 Nevertheless, the plaintiff must ultimately prove that the employer intentionally discriminated.18 Even if an employer’s decision was unreasonable or ill-considered, provided the employer honestly believed in its nondiscriminatory reason for taking the adverse action, there is no pretext.19
In addition to defending based on a legitimate, nondiscriminatory reason for an adverse action, in Den Hartog, the 10th Circuit held that employers sued for associational disability discrimination can use the “direct threat” affirmative defense that is available in other contexts under the ADA, and opined that other affirmative defenses available to employers under the nonassociation provisions of the ADA should likewise be available to employers defending against association claims.20
Types of Associational Disability Discrimination Claims
Associational disability discrimination claims generally fall into three categories.21 The first category is known as “expense,” which is when an employee’s disabled family member is covered under an employer’s health plan and an employer is alleged to have taken an adverse action against the employee to avoid the increased cost to the employer.22 Self-insured employers are at risk of being sued for expense claims because they can bear all, or part, of the health-insurance-covered expenses incurred by an employee’s family member. For example, in Trujillo v. PacifiCorp., 524 F.3d 1149, 1158 (10th Cir. 2008), the 10th Circuit reversed the district court’s grant of summary judgment in favor of the employer because the plaintiffs (husband and wife, who were longtime employees) presented evidence of the employer’s concern about health-care costs; the employer’s knowledge that its employees’ son’s cancer treatment would increase those costs; and evidence that, shortly after the employer learned of the son’s relapse, the employer used unfair auditing procedures to immediately terminate plaintiffs without progressively disciplining them, as the employer had done for other employees who allegedly committed the same or equally significant offenses.23 Because the employer in Trujillo was self-insured, it directly paid for the son’s health-care costs, and the court found that evidence that the insurance costs factored into the budget line item for each employee’s labor costs weighed heavily in favor of demonstrating a motive to discriminate against plaintiffs.24
Likewise, in Dewitt v. Proctor Hospital, 517 F.3d 944, 944-50 (7th Cir. 2008), the Seventh Circuit reversed the grant of summary judgment in favor of the self-insured employer because 1) expense reports highlighted the medical expenses incurred by plaintiff’s husband; 2) plaintiff’s supervisor — who described plaintiff in her last evaluation as being “outstanding” and consistently “go[ing] the extra mile” — confronted plaintiff about her husband’s medical expenses; and 3) the supervisor fired plaintiff within three months of telling other managers that the company would need to take “creative” efforts to cut its costs.25
The second category of associational disability discrimination claims is known as “disability by association,” a more rare claim in which an employer fears an applicant or employee will develop a disability through exposure or as a result of a genetic component of the disability of the associate.26 In one such case, Saladin v. Turner, 936 F. Supp. 1571, 1581 (N.D. Okla. 1996), the court ruled after a bench trial that plaintiff met his burden of proving his employer discriminated against him by suspending and then discharging him because of his association with his boyfriend who had AIDS. Plaintiff’s manager admitted that customer concerns about the plaintiff’s association with his boyfriend factored into the decision to suspend plaintiff, and the court noted that “effect may not be given to the public’s fears or stereotypes.”27
The third category of associational disability discrimination claims is called “distraction,” which is when an employee is inattentive at work because of the disability of his relative or associate, but — as explained below — not so inattentive that he would require an accommodation to perform his job.28 Distraction claims are the most common type of associational disability discrimination claims, and are discussed further below.
No Accommodation Is Required for the Associate’s or Relative’s Disability
In the “distraction” claims, the applicant or employee cannot require an accommodation, such as a modification to his or her work schedule, to care for his or her associate’s disability.29 The ADA does not require employers to reasonably accommodate the disabilities of individuals associated with applicants or employees.30 In other words, the ADA’s “reasonable accommodation”31 requirements are limited to accommodating qualified applicants or employees who themselves have disabilities.
This limitation on association claims is clear from the language of the ADA, which states that prohibited “discriminat[ion] against a qualified individual on the basis of disability” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.”32 Although that limitation is clear from the statutory language,33 it is a frequent subject of contention in cases, as many applicants and employees alleging associational disability discrimination are really alleging that the employer failed to accommodate their schedule limitations or attendance issues resulting from the disabilities of their loved ones.
As the Third Circuit explained in Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510 (3d Cir. 2009), to prevail on a “distraction” claim, a plaintiff is required to show her employer was motivated by her associate’s disability, rather than by the employee’s need to take time off to care for her associate’s disability — “in other words, that she would not have been fired if she had requested time off for a different reason.” In Erdman, the Third Circuit affirmed the district court’s grant of summary judgment in favor of the employer on the plaintiff’s association claim because no reasonable jury could conclude that plaintiff was fired “because of” her daughter’s disability when there was no evidence that the employer’s decision to fire plaintiff was motivated by the daughter’s disability, and the employer knew of the daughter’s disability for years prior to terminating plaintiff.34 Other federal circuit courts have likewise granted summary judgment to employers under similar circumstances, such as when employees had already missed work, or stated that they would need to miss work, or demanded another scheduling accommodation to care for the disability of their relatives or associates.35 Those holdings make sense because applicants and employees who cannot meet the attendance requirements of the position will generally be found to be not “qualified” for the job.36
An employer’s decision to take an adverse action based on an established record of absences or a clear indication from an applicant or employee that he will not be able to meet the attendance or scheduling requirements of the position generally will be considered lawful.37 If, instead, an employer takes an adverse action based on unfounded fears or assumptions about an applicant’s or employee’s need for future absences to care for a disabled person, the employer may be liable.38
Of course, employees who are not entitled to an accommodation under the ADA to care for the disabilities of their relatives can look outside of the ADA for protection. For example, eligible employees may have leave rights under the Family and Medical Leave Act (FMLA) to care for a serious health condition of their spouse, son, daughter, or parent.39 But given the qualification standards under the FMLA, many employees, and all applicants, will not be eligible for FMLA leave.40
Unlike the ADA, the FCRA Does Not Have an Association Provision
The differences between the language of the ADA and the FCRA reflect that whereas the ADA protects against associational disability discrimination, the FCRA does not. As explained above, the ADA specifies that the prohibition on “discriminat[ing] against a qualified individual on the basis of disability” encompasses “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.”41 However, the FCRA’s general prohibition against handicap discrimination in employment expressly limits its protections to discrimination based on an applicant’s or employee’s handicap: Specifically, F.S. §760.10(1)(a) (the relevant provision of the FCRA) prohibits “discriminat[ion] against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s. . .handicap.”42
Given the limitation of the FCRA’s language, it is clear that the FCRA does not protect against associational disability discrimination and it appears that the only courts to have ruled on the issue agree. In Heffernan v. North Florida Workforce Development, Inc., Case No. 4:14-cv-85-MW/CAS (N.D. Fla. April 21, 2014), the Northern District of Florida held there is no claim of associational disability discrimination under the FCRA “because no statutory authority exists for such a claim,” and the court was “not inclined to create a statutory cause of action where one does not exist.”
Similarly, in Lynn v. Lee Memorial Health System, 2015 WL 4645369, at *3 (M.D. Fla. Aug. 4, 2015), the Middle District of Florida held that “there is no viable claim [for associational disability discrimination] pursuant to the FCRA” because “the FCRA does not have a mirror associational disability discrimination provision.” As the Middle District noted in that case, violations of the ADA “are not automatic violations of the FCRA.”43 Likewise, in Beatty v. United Parcel Service, Inc., 2015 WL 7777520, at *2 (M.D. Fla. Dec. 3, 2015), the Middle District of Florida held that “because the FCRA is unambiguous, this [c]ourt cannot (nor will it) read into the statute a prohibition against associational disability discrimination.”44
Although the FCRA is generally construed consistently with the ADA,45 as the court observed in Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994), even when a Florida statute is modeled after a federal statute,46 the Florida statute should only be construed in accordance with the federal statute “insofar as such interpretation is harmonious with the spirit and policy of the Florida [L]egislature.” Because the language of the FCRA forecloses a finding that its general handicap discrimination provision protects the handicap of someone other than an applicant or employee, it cannot be considered “harmonious” with the policy of the Florida Legislature to recognize association disability discrimination claims under the FCRA.
It is interesting to note, though, that courts analyzing other states’ statutes that do not contain an association provision have reached conflicting results as to whether the statutes encompass association claims because the ADA does.47 Nevertheless, if the Florida Legislature wants to protect against associational disability discrimination, and there are certainly reasons for doing so, it would have to modify the FCRA to expressly recognize such a claim. 48
Although the ADA’s association provision contains important protections against discrimination because of the known disability of an applicant’s or employee’s relative or associate, those claims often fail because what applicants and employees most often seek, and what the ADA does not provide, is a right to an accommodation, such as a modification to work schedules, to care for their loved ones. And while the ADA protects against associational disability discrimination, the FCRA’s language precludes such a claim.q
1 42 U.S.C. §§12111-12117.
2 The Fourth, Sixth, and Seventh circuits have held that the “but-for” causation standard applies to ADA employment discrimination claims. See, e.g., Gentry v. East West Partners Club Mgmt. Co., Inc., 816 F.3d 228, 234 (4th Cir. 2016) (noting that the Fourth Circuit was joining the Sixth and Seventh circuits in holding that Title VII’s “motivating factor” standard does not apply to ADA Title I claims).
3 42 U.S.C. §12112(b)(4).
4 Fla. Stat. §§760.01-760.11 & 509.092.
5 “Employer” is defined under the ADA as “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person,” but does not include the U.S., a corporation wholly owned by the government of the U.S., an Indian tribe, or a bona fide private membership club exempt from taxation. 42 U.S.C. §12111(5).
6 42 U.S.C. §12112.
7 42 U.S.C. §12112(b)(4).
8 29 C.F.R. §1630.8.
10 See, e.g., Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 215-16 (4th Cir. 2002) (doctor’s advocacy for disabled patients, which doctor alleged caused a hospital to deny her reappointment, was not sufficient to state a claim of associational disability discrimination because every hospital employee has a loose association with disabled patients, and generalized associations with disabled persons are not protected by the ADA); Oliveras-Sifre v. Puerto Rico Dept. of Health, 214 F.3d 23, 26 (1st Cir. 2000) (affirming dismissal of ADA claim because plaintiffs did not allege a specific association with a disabled individual, and their advocacy on behalf of HIV/AIDS patients did not implicate the association provision); O’Connell v. Isocor Corp., 56 F. Supp. 2d 649, 653 (E.D. Va. July 13, 1999) (granting employer’s motion for summary judgment on plaintiff’s association claim because the plaintiff and her coworker, who mentioned her in his disability complaint against the employer, did not have the “close familial, social, business or physical relationship” contemplated by the ADA’s association provision).
11 Direct evidence establishes discriminatory intent without requiring any inference or presumption; it consists of blatant remarks whose intent could only be to discriminate. Wascura v. City of South Miami, 257 F.3d 1238, 1248 n.2 (11th Cir. 2001).
12 Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999) (following Den Hartog test); Wascura, 257 F.3d at 1242 (citing to Hilburn, which followed Den Hartog); Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011) (following Den Hartog test); Graziadio v. Culinary Inst. of Am., 817 F.3d 415 (2d Cir. 2016) (following Den Hartog test); Cf. Larimer v. International Business Machines Corp., 370 F.3d 698, 700 (7th Cir. 2004), cert. den., 543 U.S. 984 (2004) (stating that the Den Hartog test is “sound,” but requiring a plaintiff to present evidence that her case falls within the “expense,” “disability by association,” or “distraction” categories, which “Den Hartog does though not in precisely these words”).
13 Den Hartog, 129 F.3d at 1085.
14 Wascura, 257 F.3d at 1242-43.
15 Id.; Den Hartog, 129 F.3d at 1085; Trujillo v. PacifiCorp., 524 F.3d 1149, 1155 (10th Cir. 2008).
16 Trujillo, 524 F.3d at 1155.
17 Id. at 1158.
18 Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1003 (8th Cir. 2012). For example, in Wascura, 257 F.3d at 1242-43, the 11th Circuit affirmed summary judgment in favor of an employer on plaintiff’s associational claim because the plaintiff never effectively challenged the employer’s proffered legitimate reasons for the plaintiff’s termination and “adduced virtually no evidence of discrimination.” The three-and-a-half-month temporal proximity between the plaintiff notifying the employer of her son’s condition and the plaintiff’s firing, together with a “very weak inference” of discrimination from the employer’s statement that the plaintiff could use her son’s illness as “a face-saving excuse” for her termination, led the 11th Circuit to hold that the plaintiff “failed to come forward with sufficient evidence to convince a reasonable jury that the employer’s proffered reasons for terminating [plaintiff] were [a] pretext for discrimination.” Wascura, 257 F.3d at 1247.
19 Id. (noting that the 11th Circuit has repeatedly held that employers can terminate employees for good or bad reasons without violating the law; the court’s only concern is with whether unlawful discriminatory animus motivated the adverse employment action); Pulczinski, 691 F.3d at 1003 (to withstand summary judgment, plaintiff must present sufficient evidence that the employer intentionally discriminated; if an employer’s belief in a reason for taking an adverse action turns out to be wrong, that does not prove discrimination).
20 Id. at 1091-2 (“[W]e hold that the ADA permits an employer to discipline or discharge a non-disabled employee whose disabled relative or associate, because of his or her disability, poses a direct threat to the employer’s workplace.”).
21 Larimer, 370 F.3d at 700. In Larimer, the Seventh Circuit determined that associational claims must fall within one of these categories “in which an employer has a motive to discriminate against a nondisabled employee who is merely associated with a disabled person.” Id. at 702. In Stansberry, 651 F.3d at 487, the Sixth Circuit disagreed, stating that the three categories articulated in Larimer “are not necessarily an exhaustive list.”
22 Id.; 29 C.F.R §1630, App. (stating that the association provision applies to benefits and privileges of employment, and citing as an example that “an employer that provides health insurance benefits to its employees for their dependents may not reduce the level of those benefits to an employee simply because that employee has a dependent with a disability. . .even if the provision of such benefits would result in increased health insurance costs for the employer.”).
23 Trujillo, 524 F.3d at 1160.
24 Id. at 1156.
25 Dewitt, 517 F.3d at 946-47, 950.
26 Larimer, 370 F.3d at 700; 29 C.F.R §1630, App. (The association provision “would prohibit an employer from discharging an employee because the employee does volunteer work with people who have AIDS, and the employer fears that the employee may contract the disease.”).
27 Saladin, 936 F. Supp at 1571.
28 Larimer, 370 F.3d at 700.
29 Id.; Stansberry, 651 F.3d at 489.
31 Per the EEOC: “(1) The term reasonable accommodation means: (i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or (ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or (iii) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. (2) Reasonable accommodation may include but is not limited to: (i) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (ii) job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.” 29 C.F.R. §1630.2(o).
32 42 U.S.C. §12112(b)(5)(A) (emphasis added).
33 See also 29 C.F.R. Pt. 1630, App. at 1630.8 (“[A]n employer need not provide the applicant or employee without a disability with a reasonable accommodation because that duty only applies to qualified applicants or employees with disabilities. Thus, for example, an employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for a spouse with a disability.”).
34 Erdman, 582 F.3d at 510.
35 See, e.g., Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 339 (7th Cir. 2012) (noting that plaintiff claimed she was fired for her inability to work weekends and for arriving late, both due to her disabled daughter, and finding that plaintiff’s “true complaint is that the [employer], by mandating she work weekends, failed to accommodate her need to care for her disabled daughter. But unfortunately for [plaintiff], the ADA does not require employers to reasonably accommodate employees who do not themselves have a disability. As such, [plaintiff’s] claim fails as a matter of law.”); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 214 (4th Cir. 1994) (affirming summary judgment in favor of employer on plaintiff’s associational disability discrimination claim because “an employer is not obligated to accommodate through scheduling modifications…[plaintiff’s] personal need to tend to her son’s disability.”); Graziadio, 817 F.3d at 415 (affirming summary judgment in favor of employer on plaintiff’s association claim because the evidence reflected that the employer terminated plaintiff because it felt she had taken too much leave from work to care for her sons and she was not entitled to a reasonable accommodation for her one son’s disability).
36 Hilburn, 181 F.3d at 1230-1231 (affirming summary judgment for employer because employee who sought transfer or promotion was not qualified for the positions sought due to her poor attendance record caused by her illnesses and those of her family members); Magnus, 688 F.3d at 336 (“[A]n employee who cannot meet the attendance requirements of her job is not protected” by the association provision.); Tyndall, 31 F.3d at 214.
37 Id.; Erdman, 582 F.3d at 510. That is, unless the applicant or employee can show that he would not have been subjected to an adverse employment action for being absent or requesting time off for a different reason.
38 29 C.F.R. §1630, App. (An employer cannot refuse to hire an individual “because the employer believes that the applicant would have to miss work or frequently leave work early” to care for a disabled person.).
39 See, e.g., 29 U.S.C. §2612.
40 By way of example, employees are not eligible for FMLA leave unless they have worked for the employer for at least a year and have performed at least 1,250 hours of service for the employer during the previous 12 months. Employees are also ineligible if they work at a site where the employer employs less than 50 employees within 75 miles of the worksite. 29 U.S.C. §2611.
41 42 U.S.C. §12112(b)(4).
42 Emphasis added. Two of the subsections of Fla. Stat. §760.10 are not expressly limited to “such individual’s,” meaning such applicant’s or employee’s, handicap, but they have limited applicability. The first is subsection (4) of §760.10, which prohibits discriminating against individuals because of handicap in admission to, or employment in, any apprenticeship or other training program. The second is subsection (6) of §760.10, which prohibits employers from publishing any notice or advertisement “indicating any preference, limitation, specification, or discrimination, based on. . .absence of handicap.”
44 See also Beatty v. United Parcel Serv., Inc., No. 2:15-CV-607-FTM-38CM, 2016 WL 816579, at *3 (M.D. Fla. Mar. 2, 2016) (“Because this [c]ourt previously found the FCRA does not recognize a claim for associational disability discrimination and because [p]laintiff is procedurally barred from asserting such a claim under the ADA, the [c]ourt dismisses Count III of the [a]mended [c]omplaint with prejudice.”); Cf. Gonzalez v. Wells Fargo Bank, N.A., 2013 WL 5435789, at *8 (S.D. Fla. Sept. 27, 2013) (noting that the FCRA “contains no comparable express prohibition against associational disability discrimination,” but “[a]ssuming without deciding” that the FCRA encompasses such claims).
45 See, e.g., Byrd v. BT Foods, Inc., 948 So. 2d 921, 925 (Fla. 4th DCA 2007) (noting that when applied to handicap discrimination, “the FCRA is construed in conformity with the federal [ADA].”).
46 The FCRA is modeled after Title VII. Id.
47 See, e.g., Sedlacek v. Hillis, 145 Wash. 2d 379, 390-94 (Wash. 2001) (holding that “the ADA does not provide a clear mandate of Washington public policy in favor of protecting from discrimination able-bodied persons who are related to or associated with a disabled person,” in part because the Washington Legislature had not extended the disability discrimination prohibition in the Washington Law Against Discrimination to include a prohibition against associational discrimination despite the fact that the ADA association provision had been enacted a decade earlier); Flagg v. AliMed, Inc., 466 Mass. 23, 37 (Mass. 2013) (holding that Massachusetts law prohibited associational discrimination even though the state statute did not contain an association provision, in part because the “expansive definition of ‘handicap’” under that statute included individuals “regarded as having such impairment,” which encompasses individuals who may not actually be impaired themselves but are victims of assumptions, myths, or fears about limitations).
48 Some state laws contain association provisions, like the ADA does. See, e.g., Ariz. Rev. Stat. §41-1463(F).