What Exactly is “Associational Race Discrimination” under the FEHA?
By: Anne M. Turner
In California, the Fair Employment and Housing Act (FEHA) prohibits discrimination based on race, national origin, religion, age, disability, sex and gender, among other categories. In addition, the FEHA provides an express cause of action for discrimination based on association with individuals in a category protected by the Act. These types of claims primarily arise in the context of disability discrimination, where an employee is denied an accommodation in the form of a modified schedule that would permit them to take a relative for medical treatment. Outside of this context, claims of associational discrimination are rare, and few California courts have grappled with the issue of determining what association means under the FEHA.
The first such case to provide an analysis of associational race discrimination was the 2003 case Kap-Cheong v. Korea Express Co. in California’s Northern District, in which an employee alleged associational race discrimination against his employer based on his claimed association with an African American stranger. The plaintiff employee claimed that he received only positive feedback during a meeting with a top-level employee, after which the top-level employee boarded a plane and was seated next to an African American passenger. The plaintiff alleged that he was blamed for the seating arrangement and therefore fired from his position with the company. Specifically, the plaintiff claimed that he was terminated because of the top-level employee’s perception that the plaintiff was associated with the African American passenger.
The district court looked to Title VII case law to analyze the issue of associational discrimination. While Title VII does not provide an express cause of action for associational discrimination, many federal courts have allowed such claims to proceed. In the cases analyzed, “there existed some type of relationship — personal, familial, or otherwise — between the plaintiff and the person whom the plaintiff claimed was the target of the employer’s discriminatory animus.” In Kap-Cheong, however, the plaintiff was not on the same flight as the top-level employee and the African American passenger, was not related to the African American passenger, and had never met the African American passenger. Ultimately, the court found that the plaintiff had not stated a claim for association discrimination because the plaintiff had not alleged any facts demonstrating the existence of a relationship between himself and the African American passenger.
The Kap-Cheong court’s analysis centered on the relationship between the plaintiff and the individual within the protected class, with the court looking to whether there was a personal, familial, or other form of relationship that sparked the alleged discrimination. This relationship-based analysis was expanded upon by California’s Eastern District in 2011 in Eaglesmith v. Ray. In that case, two plaintiffs alleged associational race discrimination after they voiced their support for a Native American school teacher who put on a presentation discussing the Native American perspective on Thanksgiving. Focusing on the relationship between the two plaintiffs and the Native American teacher, the Eaglesmith court found that, at minimum, the two plaintiffs had plead an acquaintance relationship with the school teacher by communicating their support of him. This was enough to survive a motion to dismiss. Specifically, the Eaglesmith court expanded on the relationship-based test used in Kap-Cheong, finding that “even a friendship or acquaintance relationship is sufficient to state a claim for association discrimination under FEHA.”
So what exactly is associational race discrimination under the FEHA? It’s discrimination based on a plaintiff’s relationship with an individual or individuals within a protected category. And what type of relationship must exist for a plaintiff to state a claim based on associational race discrimination? While this has yet to be strictly defined by the California legislature or courts, the few court decisions that have address this issue indicate that a personal, familial, friend, or even acquaintance relationship will satisfy the FEHA pleading requirements.
For more information about these cases and claims of associational discrimination under FEHA, please contact the author of this post.