As we posted back in July, in Flagg v. Alimed, Inc., the Massachusetts Supreme Judicial Court ruled that the state’s anti-discrimination law, Massachusetts General Laws Chapter 151B, bars employers from discriminating against employees not only on the basis of their own handicap/disability, but also based on the handicap of a person with whom the employee associates. The Supreme Judicial Court’s decision, however, left open many questions, including how close the association must be between a Plaintiff and the disabled individual and whether advocating on behalf of a disabled person or persons was enough to qualify for protection under the statute.
The United States District Court for the District of Massachusetts recently had the opportunity to address the reach of associational disability discrimination under Chapter 151B. The case is Perez v. Greater New Bedford Vocational Technical School District.
In July 2008, Deborah Perez was hired as the director of special education at Greater New Bedford Vocational Technical School. Perez, who is a mother of two special-needs students, has more than 20 years of experience working with and advocating on behalf of students with disabilities. According to Perez, the school was not compliant with state and federal statutes, regulations, and policies pertaining to special-needs students. As a result, Perez claimed, she began to address those issues with little support from the District.
Perez alleged that her 2008-2009 performance evaluation was overwhelmingly negative and set forth 14 new goals that fundamentally changed the nature of her job. Despite the negative evaluation, Perez was rehired for the 2009-2010 academic year. In the fall of 2009, the District asked Perez to amend a grant request to hire an IT technician to assist with school-wide computer needs, rather than one trained with adaptive technology for disabled students. Perez refused because the grant was available pursuant to the Individuals with Disabilities Education Act, and Perez believed all IDEA grant funds had to be used on special-education students. The District ultimately amended the grant itself.
In February 2010, the superintendent told Perez that the District did not intend to renew her contract at the end of the academic year. In May 2010, she was notified that she would be dismissed. She was placed on administrative leave for the remainder of the school year and not rehired for the following year. Thereafter, Perez filed a complaint in court alleging, among other things, that she was discriminated against because of her association with and advocacy on behalf of disabled students at the school in violation of Chapter 151B. The school moved to dismiss, arguing that Flagg’s reasoning did not extend to the attenuated circumstances in the case. The court agreed with the school and dismissed Perez’s claim, finding that the act of advocating for disabled students did not fall within the reach of the statute.
In evaluating Perez’s claims, the court looked to the SJC’s ruling in Flagg. In Flagg, the court limited the reach of associational claims to the immediate family context raised by that case and did not comment on whether it would apply to more attenuated associations. Additionally, the SJC had reasoned that when Flagg was terminated due to what he alleged was his wife’s disability, Flagg himself was treated as the handicapped person by proxy.
The court also looked to associational discrimination claims under the Americans with Disabilities Act and noted that a plaintiff cannot succeed on a claim for associational disability discrimination under the ADA unless the plaintiff alleges a specific association with a disabled person. The court found that Perez did not allege any specific association and that her advocacy for disabled students as the director of special education did not result in any treatment of her as handicapped by proxy as had been the case in Flagg. As a result, the court dismissed Perez’s claim for associational disability discrimination under Mass. Gen. L. Ch. 151B.
This case gives us a little more guidance on the reach of Mass. Gen. L. Ch. 151B with regarding to associational discrimination. The ruling makes it clear that in order to set forth a valid claim and survive a motion to dismiss, a plaintiff must allege an association with a specific disabled individual, rather than mere advocacy on behalf of a group, and that the plaintiff was treated as disabled by proxy; however, questions still remain with respect to how attenuated the association may be in order to be protected by Chapter 151B.