A recent government survey of parents found that the estimated number of children diagnosed with autism has increased significantly over the past few years. According to the report by the Centers for Disease Control and Prevention and the National Center for Health Statistics, one in 45 children ages three through 17 were diagnosed with autism, compared to one in 80 in 2011-2013.

 

Parents of children with an Autism Spectrum Disorder (ASD) face a unique set of challenges posed by the communication difficulties and special impairments commonly associated with these neurodevelopmental disorders. As the report notes, "[c]hildren diagnosed with developmental disabilities typically require a substantial number of services and treatments to address both behavioral and developmental challenges."

 

A 2007 study by the Government Accountability Office found that 54 percent of federal employees said they had a child or adult relative with dependent care needs. At the new one-in-45 rate, it is likely some parents in the federal civil service have a child with autism. And while the fact that they are the parents of children with special needs should not impact their careers in the federal civil service, it often does. In fact, such association discrimination is prohibited by the Rehabilitation Act, which applies to the federal government. Federal managers must keep in check their concerns that an employee is less trustworthy or reliable because his or her caretaking obligations to an autistic child.

 

It is unlawful for an employer to "exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association," the Equal Employment Opportunity Commission (EEOC) noted in Helena v. Department of Defense (2010). To prove association discrimination, a complainant must show he or she was qualified for the position and subjected to an adverse employment action. The complainant must also show the agency was aware of his or her relationship with a disabled individual and that this relationship influenced the agency's adverse employment action decision, the Commission further noted.

 

In Stump v. Department of Homeland Security (2010), the EEOC vacated an administrative judge's dismissal of the case, in which the complainant claimed the agency failed to promote him because of a perceived disability and his association with a disabled individual, namely his autistic son. The Commission remanded the case so it can be determined why the agency selected an individual for promotion who had a lower promotion register score than the complainant and why the complainant's score was lowered in the evaluation process.

 

It is also important to keep in mind that an employee's association with an autistic child does not make a reasonable accommodation in the form of a more flexible work schedule mandatory. In Helena, an EEOC administrative judge had found the agency discriminated against the complainant by denying his request for a change in work shift so he could care for his autistic son. The complainant's supervisor rejected this request, saying, "You should have made arrangements for your son before you accepted the position. Therefore, your request for a shift change is denied." However, the Commission reversed the administrative judge's position, finding the complainant failed to show "that the adverse employment action occurred under circumstances which raised a reasonable inference that his son's disability was a determining factor in the employer's decision." The agency showed that it had similarly denied shift change requests from non-disabled employees and how it only granted a temporary request to afford another employee more time to find child care.

 

Federal employees should not be punished at work for being the parent of a child with autism or any other developmental or intellectual disorder. Employees who believe they are the victims of association discrimination should immediately contact a federal employment law attorney.

 

Cheri Cannon is a partner at Tully Rinckey PLLC and the former chief counsel to the chairman of the Merit Systems Protection Board. She concentrates her practice in federal sector employment and labor law and can be reached at info@fedattorney.com.