EMPLOYER CAN BE SUED FOR “ASSOCIATIONAL DISCRIMINATION”

Published on: August 19, 2013

By Douglas A. Troyer

The term “associational discrimination,” in the context of an employment discrimination claim, refers to a claim that a plaintiff, although not a member of a protected class himself or herself, is the victim of discrimination animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates.

The Massachusetts Supreme Judicial Court (“S.J.C.”) has, in a narrowly tailored decision, expanded the reach of the state’s anti-discrimination statute, M.G.L. c. 151B, to include claims of associational discrimination in the employment context on the basis of an employee’s association with an immediate family member who is disabled. 

In the July 17, 2013 decision of Flagg v. AliMed, Inc., 466 Mass. 23 (2013), the S.J.C.  recognized, for the first time, that MG.L. C. 151B bars employers from discriminating against employees based not only on their own handicap or disability, but also based on the handicap or disability of an immediate family member with whom the employee associates.  The Supreme Judicial Court emphasized, however, that the holding of the case was limited to the narrow circumstances presented in the case. 

In Flagg v. AliMed, Inc., Mark Flagg, a former employee of AliMed, filed suit against AliMed on the basis that it had terminated his employment because of his association with his disabled wife. Mr. Flagg had worked for AliMed for approximately 18 years and received positive performance reviews. During that time, Mr. Flagg received benefits under an employer-sponsored health insurance plan for him and his family.  On December 7, 2007, Mr. Flagg’s wife underwent surgery to remove a brain tumor, leaving Mr. Flagg responsible for the care of their children, including picking up his daughter from school which required him to leave work from approximately 2:55 p.m. until 3:20 p.m. on certain days.  Mr. Flagg asked his manager for permission to leave work during those times and the manager replied that he should take the time necessary to do what he had to do to care for his family.  Between December 27, 2007 and January 15, 2008, Mr. Flagg picked up his daughter from school, but did not punch out when he left or punch in when he returned to work.  Mr. Flagg’s manager knew that he did not punch out during those times, but did not say anything to him.  On February 4, 2008, AliMed terminated Mr. Flagg’s employment stating that because he had failed to punch out when he left to pick up his daughter, he had been paid for time that he did not work — essentially, that his behavior amounted to a violation of policy and/or misconduct.  At the time of his termination, Mr. Flagg’s wife had been hospitalized due to a recurrence of the brain tumor.  Mr. Flagg contended that the reason offered by AliMed for termination was false and that the real reason for the decision to terminate him was that AliMed did not want to pay for his wife’s expensive medical treatment (for which AliMed was responsible through its health plan).  Mr. Flagg’s termination resulted in the immediate cancellation of his health insurance benefits — including much needed benefits for his wife’s ongoing care —  and, to make matters worse, Mr. Flagg was initially denied unemployment benefits. 

The Trial Court initially dismissed Mr. Flagg’s claim on the grounds that the Commonwealth does not recognize a discrimination claim based on an employee’s association with a disabled person.  Mr. Flagg appealed and the SJC took up the case.

For a copy of the Decision please [click here].