Associational Discrimination Claims under Massachusetts LawPrint PDF
An employee claiming “associational discrimination” alleges mistreatment by his or her employer because of the employer’s animus toward the protected status (e.g., race, sex, disability, etc.) of someone with whom the employee associates. Such claims are well established in federal employment law,1 and for over thirty years have formed a basis for rulings by the Massachusetts agency that enforces the state’s non-discrimination statute, the Fair Employment Practices Act (FEPA).2 It was not until July 19, 2013, however, that the Massachusetts Supreme Judicial Court (SJC), in Flagg v. AliMed, Inc.,3 approved an associational discrimination claim under FEPA. And even in view of the SJC’s ruling in Flagg, the federal district court in Massachusetts, on November 13, 2013, rejected a FEPA associational discrimination claim in Perez v. Greater New Bedford Vocational Technical School District.4 Because both Flagg and Perez involved claims arising from an employee’s association with a disabled person, the two rulings may, at first blush, seem inconsistent. If so, the following four-point clarification may be useful.
1. The core reason why associational discrimination law is developing so uncertainly in Massachusetts is that associational discrimination is not mentioned in the state statute being enforced.
Massachusetts’ primary non-discrimination statute, the FEPA, expressly prohibits discrimination based on an employee’s own protected status.5 But unlike the ADA, the FEPA does not mention discrimination against an employee because of the protected status of someone with whom the employee associates. As a result, the SJC based its ruling in Flagg on the allegedly broader “objectives and purposes” of the FEPA, the interpretation already given to the FEPA by the Massachusetts Commission Against Discrimination, and analogous discrimination rulings by the federal courts.
2. Although the SJC’s language in Flagg is broad, its holding about associational discrimination is narrow.
According to the SJC in Flagg, the FEPA’s anti-discrimination provisions can “only be understood as establishing an expansive, categorical prohibition against discrimination based on handicap in the workplace generally.” As a result, reasoned the Court, “the concept of associational discrimination … furthers the more general purposes of [the FEPA] as a wide-ranging law, ‘seeking removal of artificial, arbitrary, and unnecessary barriers to full participation in the workplace’ that are based on discrimination.” But the SJC’s holding in Flagg was narrower than this broad language. The holding was simply that an employer violates the FEPA’s prohibition against handicap or disability discrimination if it fires an employee because it wants to keep the company health plan from having to pay the medical expenses of the employee’s disabled wife.
In other words, the SJC did not hold or say that an associational discrimination claim can be based on any type of association. Instead, the SJC expressly “limit[ed] [its] analysis of associational claims to the immediate family context raised by [the Flagg case]” and emphasized that it had “no occasion … to examine more attenuated associations.”
Flagg thus left employers, employees, and everyone else to speculate about whether an associational discrimination claim could be valid in a slightly different set of circumstances based on a different type of association.
3. In Perez, the federal district court rejected the plaintiff’s associational discrimination claim because, unlike the situation in Flagg, at issue was a non- familial association between a school teacher and her disabled students.
Four months after Flagg, the federal district court in Massachusetts decided Perez. Perez did not involve a familial association. And according to that ruling, a school district does not violate the FEPA’s prohibition against disability discrimination if it decides not to renew a special education coordinator’s employment contract because of her association with (and advocacy for) the disabled students at her school. According to the district court, the particular teacher-student association alleged by the plaintiff, unlike the husband-wife association in Flagg, was too attenuated to support a claim.
4. Perez, too, shows that this area of law will continue to evolve, because it suggests that an associational discrimination claim based on a teacher-student association could be valid if an employee (teacher) alleges different circumstances.
In Perez, the district court based its ruling, at least in part, on circumstances that the plaintiff had not alleged. The court noted that the plaintiff had not alleged being “subject to the same prejudice, stereotypes, or unfounded fear that accompanies discrimination against the handicapped.” Nor had the plaintiff alleged that “her association with any specific disabled child resulted in adverse employment actions” or that “she was dismissed because of the defendant’s beliefs regarding any disabled students with whom she was associated.” Each of those disclaimers by the court implies that, if the allegations had been slightly different, the plaintiff’s associational discrimination claim might have been valid even though only a non-familial, teacher-student association was at issue.
1 The Americans with Disabilities Act (ADA) is an example. The ADA expressly prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4).
2 See, e.g., Dittbenner v. Hapco Auto Parts, Inc., 11 Mass. Discrimination L. Rep. 1139 (1989).
3 466 Mass. 23 (2013).
4 2013 BL 313612 (D. Mass. 2013).
5 See, e.g., M.G.L. c. 151B, § 4(16) (prohibiting discrimination against an employee “because of his handicap”) (emphasis added).
This advisory was prepared by David C. Henderson, a member of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact David at 617.439.2345 or your Nutter attorney at 617.439.2000.
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