July 19, 2013: Massachusetts law has long protected employees from discrimination based on their disabilities, both real and perceived. It now also protects employees who have suffered discrimination on the basis of a another person’s disability, if that person is someone with whom the employee “associates” (e.g. a spouse). That was the decision that the Supreme Judicial Court released earlier today in the case of Flagg v. Alimed (SJC-11182).
The question before the Court was whether the state’s anti-discrimination law (M.G.L. c. 151B) “bars an employer from discriminating against its employee based on the handicap of a person with whom the employee associates.” In an unequivocal answer, which endorsed the position of the Massachusetts Commission Against Discrimination (MCAD), the Court stated: “[W]e hold that associational discrimination based on handicap is prohibited under [M.G.L. c. 151B] § 4(16).”
Although they concurred in the opinion, two of the justices (Gants and Cordy) would have found for the plaintiff employee on narrower grounds.
The case involved an employee who was “fired because the employer feared the medical expenses his spouse was likely to incur because of her handicap,” not because of any request for “reasonable accommodations,” such as taking time off to care for her. What concerned the two Justices Gants and Cordy was the possibility that plaintiff employees might use the Flagg decision to argue that employers now have a duty to provide them with reasonable accommodations — flexible schedules for example — based on the needs of the individuals they are associated with, e.g. disabled spouses. Such a reading of Chapter 151B after Flagg would go further than the Americans with Disabilities Act (ADA), an outcome the two concurring justices would have liked to forestall.
Will the MCAD and lower courts apply associational discrimination under Chapter 151B more broadly than under the ADA, as Justices Gants and Cordy fear? I suspect they will.
For a PDF of my Briefing Paper on the implications of the Flagg decision, click this link: associational-discrimination-paper.pdf.
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