SJC Rules Massachusetts Law Protects Associational Discrimination

The Massachusetts Supreme Judicial Court (“SJC”) has ruled this week that the state anti-discrimination law, Mass. Gen. L. Ch. 151B, bars employers from discriminating against employees based not only on their own handicap/disability, but also based on the handicap of a person with whom the employee associates.

The case is Flagg v. AliMed, Inc., and based on the facts of the case, we can see how the court was moved to rule in favor of the employee.  Marc Flagg worked for AliMed for 18 years and had good performance appraisals.  Flagg was a salaried employee and was entitled to benefits under AliMed’s employer-sponsored health insurance plan.  In December 2007, Flagg’s wife underwent surgery for the removal of a brain tumor, and Flagg became responsible for caring for the couple’s children, including picking his daughter up from school on certain days.  Flagg asked for permission to be absent from work from around 2:55 p.m. to 3:20 p.m. on those days, and his manager told him to do whatever he needed to do to take care of his family.

Between December 27, 2007, and January 15, 2008, Flagg picked his daughter up from school, but he did not “punch out” when he left, when he returned, or when he left at the end of the day.  Flagg’s manager was aware of his failure to “punch out,” but didn’t say anything to him about it.  On February 4, however, AliMed terminated Flagg, allegedly because he had failed to punch out and had, therefore, been paid for hours 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.  The termination resulted in the immediate cancellation of Flagg’s health insurance benefits and, to add insult to injury, Flagg was initially denied unemployment benefits.  Flagg then was forced to liquidate his retirement plan and other savings and endured severe emotional distress.

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 based on his wife’s handicap.  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.

Turning its attention to the specific language of § 4(16), the court noted that the third prong of the definition of handicap includes those who are “regarded as” having an impairment that substantially limits a major life activity.  Under Massachusetts case law, this third prong has been interpreted to protect “those persons who, whether actually impaired or not, may be the victims of stereotypic assumptions, myths, and fears regarding such limitations.”  The court found that when an employer takes an adverse action against its employee because of his spouse’s impairment, it is targeting the employee as the direct victim of its discriminatory attitude, punishing the employee as if he, himself, were the handicapped individual.  Accordingly, the SJC ruled that § 4(16) could be read to incorporate the concept of handicap discrimination based on association.

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.

Significantly, 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 argued that this ruling should be limited to a case 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 association with a disabled person, such as through contact with someone who is HIV+ or because of a genetic predisposition for a disease carried by a relative.

Takeaway:

This decision makes it clear that an employer may not make a decision about an employee based on its fear that continuing to employ that person will increase the employer’s health insurance expenses, even if those expenses will increase, not because of the employee’s own physical or mental impairment, but instead because of the physical or mental impairment of someone who is associated with that employee and, therefore, covered under the employer’s health insurance plan.  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 that your company might make a decision that could result in similar problems, contact any one of the attorneys at Skoler, Abbott & Presser, P.C.