Last week, the Massachusetts Supreme Judicial Court (“SJC”) issued a significant decision, Flagg v. AliMed, Inc., establishing for the first time that the Massachusetts Antidiscrimination law, G.L.c. 151B, protects employees from acts of “associational discrimination.” Anne Josephson, along with her colleagues in KC&S’s employment group, filed an amicus (friend of the court) brief in support of the employee’s position in that case. The firm frequently submits amicus briefs in cases such as Flagg that have important implications for the fields of employment law and civil rights.
Flagg concerned an employee whose wife was disabled. He asserted that his company had fired him not because of any issue with his performance but because the employer wanted to avoid the cost of maintaining his family on its health plan. Individuals with disabilities are among those protected under Chapter 151B. In this case, however, it was not the employee but his wife who had the disability. The employee sued the employer on a theory of associational discrimination. He alleged that he had been subjected to adverse action based upon stereotypes, prejudices, and/or fears not because he himself was a member of a protected class, but because he was associated with a member of a protected class.
Prior to Flagg, it was not clear whether Chapter 151B allowed such relief. In Flagg, the SJC ruled that Chapter 151B does afford protection against associational discrimination, at least in the circumstances of that case. (Other circumstances that may support a claim for associational discrimination remain to be tested at the Massachusetts Commission Against Discrimination and in court.) Notably, the SJC recognized that when an employer discriminates against an employee on the basis of his/her association with a disabled person, the employer is committing the very wrong that Chapter 151B was enacted to address. As the SJC emphasized, protecting employees against associational discrimination is necessary in order to carry out the statute’s important remedial purposes.
Flagg is important for at least two reasons. First, it makes clear that 151B protects employees with disabled family members from adverse employment action when the employer’s decision is motivated by discriminatory animus. If you have a disabled spouse or child, and if you believe that your employer has taken action against you because of the expense of your disabled family member’s health coverage or for any other reason connected to his/her disability, you may be entitled to relief under Chapter 151B. Second, Flagg defines “associational discrimination” in a way that does not preclude – and, indeed, in many respects, lays the groundwork for – applying the protections of 151B to other forms of associational discrimination, such as discrimination based upon an employee’s association with others of a different race, national origin, or sexual orientation.
Anne Josephson is a partner in the Employment Law practice group at Kotin, Crabtree & Strong, LLP in Boston Massachusetts. Kotin, Crabtree & Strong’s Employment Law practice group offers a broad range of services to individuals and employers alike. We advise and represent clients on employment issues ranging from wrongful termination, employment discrimination, retaliation, wage claims and sexual harassment to the interpretation and enforcement of employment contracts, post-employment restrictive covenants, change of control agreements, and ERISA benefit plans.