Massachusetts High Court Approves State Law Associational Handicap Discrimination Claim

In a case of first impression, the Massachusetts Supreme Judicial Court (SJC) has approved a worker’s claim under the Commonwealth’s anti-discrimination law, Mass. G.L. c. 151B, that his former employer discriminated against him by terminating his employment based on his wife’s disability. In Flagg v. AliMed, Inc. (No. SJC 11182 (July 19, 2013)), the court recognized, for the first time, a claim for discrimination based not on the plaintiff’s own handicap, but on the handicap of a person with whom the plaintiff was associated—although the court was careful to limit its recognition of associational claims to the immediate family context raised by the facts of the case before it, and did not extend its holding to “more attenuated associations.”

Marc Flagg had been employed by AliMed, Inc., for approximately 18 years, receiving a salary and benefits (including medical insurance coverage). In December of 2007, Flagg’s wife allegedly underwent surgery to remove a brain tumor, after which she required rehabilitative care. As a result of his wife’s needs, according to Flagg, he had to take on greater responsibility for the care of his children, including the obligation to pick up his daughter from school—a task that required him to be absent from work between 2:50 p.m. and 3:30 p.m. on school days. Flagg alleged that his manager not only approved his absence from work for this purpose, but also knew and raised no objection to the fact that Flagg did not punch out during these absences.

In February of 2008, however, AliMed terminated Flagg’s employment, purportedly because he had failed to punch out when he left work to pick up his daughter from school and thus had been paid for time that he had not worked. According to Flagg, however, AliMed’s proffered reason for discharging him was false. The real reason for AliMed’s action, Flagg alleged, was the fact that his wife had a serious and expensive medical condition that rendered her disabled and for which AliMed (through its health plan) was financially responsible for the duration of Flagg’s employment.

Flagg filed suit against AliMed, alleging claims for employment discrimination on the basis of handicap under section 4(16) of Massachusetts’ anti-discrimination law, among other claims. AliMed filed a motion to dismiss, which the trial court granted. The trial court observed that Flagg’s theory of liability, i.e., that AliMed fired him not because of his own handicap, but because of his wife’s, “is not recognized in the Commonwealth.”

Flagg’s appeal from the trial court’s order was transferred to the SJC on that court’s own motion. The court overturned the trial court’s dismissal of Flagg’s discrimination claim, holding for the first time that a claim of associational handicap discrimination—i.e., “that a plaintiff, although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates”—is cognizable under section 4(16).

In reaching the conclusion that section 4(16) encompasses associational handicap discrimination claims, the court first observed that the language of the statute must be read broadly, in keeping with the “overarching” remedial purpose of the statute and of Chapter 151B generally. The statute, in relevant part, provides that it shall be an unlawful practice for an employer to:

discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business. (emphasis added)

Interpreted in this generous fashion, the court held, the statute’s definition of the term “handicap” to include “being regarded as having” a physical or mental impairment that substantially limits one or more major life activities “signal[s] that the Legislature intended §4(16) to prevent an employer’s animus against disability from adversely affecting not just those employees with actual handicaps but essentially all members of its workforce, because every employee theoretically has the potential for ‘being regarded’ by the employer as having an impairment.”

Thus, the court reasoned, “[w]hen an employer takes adverse action against its employee because of his spouse’s impairment, it is targeting the employee as the direct victim of its animus, inflicting punishment for exactly the same reason and in exactly the same way as if the employee were handicapped himself.” Such an employee, the court concluded, “suffers precisely the same type of discrimination as an employee whom the employer directly but incorrectly ‘regard[s] as’ being handicapped.”

The court found support for its conclusion that section 4(16) “is properly read to accommodate the concept of handicap discrimination based on association” in the decisions of the Massachusetts Commission Against Discrimination—the agency charged by the legislature with determining the scope of Chapter 151B, and to whose decisions on such issues the court has, as it observed, “generally afford[ed] . . . substantial deference.” The court also relied on federal court decisions recognizing associational discrimination claims under the Rehabilitation Act of 1973, which was the statute “on which the Massachusetts Legislature explicitly patterned the definition of ‘handicap’ in c. 151B.”

Finally, the court considered and rejected AliMed’s argument that because the Americans with Disabilities Act (ADA) specifically covers associational discrimination, the absence of such specific coverage in section 4(16) indicates that its drafters did not intend to cover that type of discrimination. Observing that because section 4(16) was enacted years before the ADA, the court noted that the federal statute “cannot usefully inform our understanding of the Legislature’s intent concerning associational discrimination” when it drafted the state laws proscribing handicap discrimination in employment.