Massachusetts Employment Law Letter

Disability by association? SJC says yes

The plain language of Massachusetts anti-discrimination statute, Mass. Gen. L. Ch. 151B, protects an employee from discrimination because of disability.  So does that mean that only employees are protected by the statute?  According to the Massachusetts highest court, the Supreme Judicial Court (“SJC”), apparently not.  How will this change affect employers? 

What were they thinking?

Marc Flagg worked for AliMed for 18 years with good performance appraisals.  Flagg was a salaried employee entitled to benefits under AliMed’s health insurance plan.  In December 2007, his wife had surgery to remove a brain tumor, and Flagg became responsible for caring for the couple’s children, including sometimes picking his daughter up from school.  Flagg asked for permission to occasionally be absent from work for about a half hour, and his manager told him to do whatever he needed to do to take care of his family.

Apparently, when Flagg left to pick his daughter up from school, he did not “punch out.” This was not a problem for Flagg’s manager, but in February, AliMed abruptly terminated Flagg, allegedly because he had failed to punch out and had, therefore, been paid for hours that he had not actually worked.  AliMed’s proffered reason was false:  the real reason for the decision to terminate Flagg was that his wife had again been hospitalized, and AliMed, through its health plan, was financially responsible for the enormous medical bills.  Flagg’s health insurance was cancelled, and, to add insult to injury, he initially was denied unemployment benefits.  Flagg ended up exhausting all of his savings, including his retirement plan, and endured severe emotional distress.

The intent of the statute

Flagg sued AliMed, claiming discrimination under Ch. 151B.  The trial court dismissed Flagg’s suit under Ch. 151B on the grounds that Massachusetts law did not recognize a claim by Flagg that was not based on his own handicap, but was instead based on his wife.  When Flagg appealed, the SJC took up the case on direct appellate review.

In its decision, the SJC noted that Flagg’s suit against AliMed was premised on the company’s discrimination against his wife, that is, AliMed’s desire to be free from its obligation to pay for her costly medical bills.  Flagg argued that this form of discrimination fell within the reach of Ch. 151B, § 4(16), because it caused a direct and specific injury to him as an employee and, therefore, represented “a formidable barrier to the full participation of an individual in the workplace,” something that Ch. 151B was intended to prevent.  For its part, AliMed argued that the plain language of the statute protected only the handicapped employee, not anyone with whom the employee associates.

The SJC concluded that AliMed was reading the statute too narrowly.  The court found that the statute was designed to eliminate all forms of discrimination in employment, and that when an employer subjects an otherwise satisfactory employee to adverse employment decisions, based solely on hostility toward the handicapped condition of the employee’s spouse, the employer is treating the employee as if he were, himself, handicapped, thereby subjecting the employee to the exact “prejudice, stereotypes, or unfounded fear” that the statute was designed to prevent.  The court noted that interpreting the language of the statute to include associational discrimination furthers the more general purposes of Ch. 151B, which seeks to remove “artificial, arbitrary, and unnecessary barriers to full participation in the workplace . . . .”  In addition, the statute expressly allows “any person claiming to be aggrieved” by a practice made unlawful under the statute to bring a claim for relief, and since Flagg was clearly harmed, he should have a remedy under the statute.

Plus, the court found an alternate path to relief in the third prong of the definition of handicap, which includes those who are “regarded as” having an impairment that substantially limits a major life activity.  Cases in Massachusetts have interpreted this provision as providing protection to “those persons who, whether actually impaired or not, may be the victims of stereotypic assumptions, myths, and fears regarding such limitations.”  According to the SJC, an employer that takes an adverse action against its employee because of his spouse’s impairment is targeting the employee as the direct victim of its discriminatory attitude, punishing the employee as if he, himself, were the handicapped individual.

Other arguments in support of associational disability claims

In further support of its decision, the SJC noted that the Massachusetts Commission Against Discrimination (“MCAD”) has consistently found claims of associational discrimination to be valid and that some analogous Federal anti-discrimination statutes, specifically Title VII and the Rehabilitation Act, have also been interpreted to cover claims of associational discrimination.  The Americans with Disabilities Act (“ADA”) also prohibits associational discrimination, but its statutory language specifically states that an employee cannot be discriminated against based on his association or relationship with a disabled individual.  Although Massachusetts courts have sometimes distinguished state law from the ADA based on differences in the language of the two statutes, the SJC declined to do so in this case.

Will this decision go farther?

In a concurring opinion, Justices Gants and Cordy gave voice to the concern that many employers might feel when learning of this decision:  the fear that “associational discrimination” might be interpreted more broadly than the SJC had perhaps intended.  Although the court’s decision, in a footnote, states that the decision is not intended to address the issue of whether an employee who is associated with a disabled individual is entitled to a reasonable accommodation, the concurring opinion argues that this ruling should be strictly limited to cases like Flagg, where a spouse has a disability that is costly to the employer because the spouse is covered by the company’s health plan or where the employer fears that a non-disabled employee will become disabled because of his or her association with a disabled person who has a contagious disease or perhaps a genetic predisposition for a disease carried by a relative.  The case is Flagg v. AliMed (Mass. SJC, 2013).

What does this mean?

Shortly after the SJC issued its decision, the Massachusetts Appeals Court, citing on Flagg,dismissed a suit filed by an employee who claimed that he had been terminated because of his association with his autistic son.  The Appeals Court recognized that associational disability claims are now recognized under Massachusetts law, but it concluded that the employee’s allegations did not establish any connection between his son’s medical condition and the company’s decision.  Nonetheless, this decision will open the door for more cases where the employee may believe, rightly or wrongly, that the employer’s actions were based on an association with a disabled individual.  Following the SJC’s decision, this case was returned to the Superior Court for trial, and we can imagine that the damages here will be hefty if the jury finds for Flagg.  If you are concerned about the likelihood that a decision you might make with regard to an employee could result in similar litigation, you should discuss the situation with your labor and employment counsel.

Article By: Susan G. Fentin
Reprinted from the October 2013 issue of the  Massachusetts Employment Law Letter.