Associational Discrimination: An Employment Red Flagg

In a recent, precedent setting decision, the Supreme Judicial Court found that the plaintiff, Marc Flagg, had a valid claim of associational discrimination by his employer AliMed, Inc.  Associational discrimination is something that occurs when an employer takes a negative action against an employee due to someone that they are associated with in a protected class, such as race, religion, handicap, or sexual orientation. This case was the first to affirm application of MCAD rulings to an employer with “animus” – a bad attitude – toward an employee terminated allegedly for discrimination against him because of his seriously ill spouse with expensive medical treatment. The Court overturned a motion to dismiss.

The plaintiff worked for AliMed for eighteen years with good job performance reviews. His benefits included family medical insurance with the implied term that AliMed would not terminate him because a family member developed an expensive medical condition. When Mr. Flagg’s wife had a brain tumor removed and began receiving rehabilitative care, Flagg became responsible for caring for his children, including missing some work to pick up his daughter from school. The plaintiff’s manager at AliMed told him to take the time necessary to do what he had to do to care for his family.

When the plaintiff left work to pick up his daughter, several times, he did not “punch out,” which meant he was paid for time not worked. His manager knew, but did not say anything about this practice. However, in February of 2008, AliMed terminated Flagg for this “issue.” AliMed’s real reason for terminating the plaintiff was because they were financially responsible for the expensive medical condition that rendered her totally disabled. The termination took place when his wife was in the hospital once more. Upon his termination, Flagg’s health insurance was immediately cancelled, and he faced an initial denial of unemployment benefits. As a result, Flagg emptied his retirement funds and all of his savings to pay the medical expenses and suffered a lot of mental anguish.

Flagg’s case against AliMed didn’t do so well at first, losing to a motion to dismiss in the Superior Court. On appeal, the Supreme Judicial Court, SJC found that under Chapter 151B, § 4(16) making handicap discrimination unlawful that an employee claiming that his employer fired him because it did not want to cover his disabled wife’s medical expenses could sue for “associational discrimination.”

Flagg’s reasoning was that such discrimination undermines the intent of the statute by limiting an individual’s ability to participate in the workforce. The SJC agreed:

“When an employer subjects an otherwise satisfactory employee to adverse employment decisions premised on hostility toward the handicapped condition of the employee’s spouse, it is treating the employee as if he were handicapped himself — that is, predicated on discriminatory animus, the employer treats the spouse’s handicap as a characteristic bearing on the employee’s fitness for his job. The employee is thereby subjected to the type of “prejudice, stereotypes, or unfounded fear” relating to handicapped individuals that c. 151B, § 4 (16), seeks to protect against. See Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383-384 (1993), quoting School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987). Cf. Dahill, 434 Mass. at 240-241.”

This means that as an employer, if you take any action towards an employee because of the disabled status of someone they are associated with, you are violating the anti-discriminatory laws under Chapter 151B, as though the employee(s) were handicapped themselves.

In reading this event as associational discrimination, it broadens the scope of Chapter 151B to protect individuals from adverse actions, regardless of whether or not they were the direct target, and applies to other kinds of discrimination.

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