More and more employers, and indeed employees, are repudiating all forms of racism, especially in the workplace—but it still persists. One of the more unusual and hard to prove examples seen in recent years is when an employer discriminates against an employee or potential hire not based on their own race, but on the basis of the employee’s spouse being of another race. While it may seem farfetched, it does happen. This is referred to as associational discrimination, and it has been recognized by the courts.
Definitions and Terms
Generally, the term “associational discrimination” does not appear in statutes, but it does show up in court cases. Most statutes are simply not expansive enough to deal with this issue—South Carolina’s Human Affairs Law included. Historically, the spousal relationship has been the only one on which courts have allowed claims to be brought forward, but this does not mean that other associations have been foreclosed from being used in similar suits. The crux of the matter is that if the associational relationship (whatever it may be, though it is usually established on the basis of race), is used by an employer as a pretext to deny advancement or to punish without cause, a claim of associational discrimination may be brought.
The important characteristic to remember about a claim of associational discrimination is that it is both your and your spouse’s race that are being used to discriminate. The courts have routinely reached this conclusion in several similar cases. If a white woman is married to a man of color, and employer discriminates against her because of her husband, the reason is technically twofold: because she is married to a black man, and because implicitly, the employer is allegedly showing that they do not believe white women should marry black men.
The ADA, GINA & Title VII
Race is often the primary ground upon which discrimination in the workplace is alleged, but when race is not a factor, disability and/or genetic information is the next most common argument. It is important to look at the Americans With Disabilities Act (ADA), under which many associational discrimination claims have been brought. A case in Illinois, for example, was brought on such grounds when a nurse was fired from her job at a hospital after her husband was diagnosed with cancer, requiring heavy radiation and chemotherapy. The hospital allegedly fired the plaintiff to save money on her husband’s care, thus discriminating against both her and her husband.
No case in the 4th Circuit, which covers South Carolina, has yet been mounted as of this writing, but given the frequency of similar claims in circuits around the country, it is not implausible to say that South Carolina employers would do well to avoid situations where such claims could be made. Associations with members of protected classes are increasingly becoming protected themselves, and paying extra mind to such relationships may save employers significant time and trouble in the future.
Ask A Knowledgeable Attorney
Employment law is a complex topic, but it is important to understand your rights and those of your loved ones. Contact a Charleston, SC employment discrimination attorney at the firm of Hitchcock & Potts, and we will work to help you with your case. Call today to set up an appointment.