How the ADA Covers Organ Donors

Every now and again I come across a case that offends my sensibilities. Rope v. Auto-Chlor Sys. of Wash., Inc. (Cal. Ct. App. 10/16/13) is one of those cases.

When Auto-Chlor hired Scott Rope as a branch manager in September 2010, he told his new employer that he planned to donate a kidney to his physically disabled sister in February 2011. In November 2010, he formally requested a 30-day leave of absence for the kidney donation and his recovery thereafter. His manager promised to “look into it.” Instead, on December 30, 2010, he fired Rope.

The court had little issue concluding that Rope’s disability discrimination claim could proceed. “Rope has thus met his burden to show the adverse employment action occurred under circumstances raising a reasonable inference that the disability of his or her relative or associate was a substantial factor motivating the employer’s decision.”

A few points to consider about this case:

1. The Americans with Disabilities Act does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. Thus, Rope could not claim that Auto-Chlor discriminated against him by denying time off as a reasonable accommodation.

2. California has a specific statute that requires 30 days of paid time off “to an employee who is an organ donor … for the purpose of donating his organ to another person.” Rope claimed that Auto-Chlor terminated him avoid having to incur the expense of his paid leave pursuant to that law, which, in turn, equated to disability discrimination. The court agreed.

3. Even without this specific organ-donation statute, however, the ADA likely nevertheless requires time off (albeit unpaid) for organ donation and the recovery thereafter. The ADA mandates that an employer avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

I’ve written before about the need to put the “human” back in “human resources.” This case is a textbook example. When Auto-Chlor hired Rope, it knew: (1) he had disabled sister, and (2) he needed time off to donate a kidney to her. Is is inconvenient for an employer to provide a month off to a new employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of that leave request? Absolutely not. This decision is likely illegal, but it is also undoubtedly inhuman. It is that inhumanity that will cost your company dearly in front of a judge or a jury.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. You can also follow Hyman on Twitter at @jonhyman.