SJC Confirms that Discrimination based on Association with Another is Illegal in Massachusetts


It’s now officially the law of the Commonwealth, even if last week’s decision by the Supreme Judicial Court (SJC) was predictable in confirming what the Massachusetts Commission Against Discrimination (MCAD) decided decades ago. If you are fired from your job based on your association with another person, you have a colorable claim of your own against your employer even if you are not a member of the protected class of persons that forms the foundation for your lawsuit.

Flagg v. Alimed, Inc. was decided by the SJC on July 19. It involved a long-term employee who was fired because his wife suffered the effects of a debilitating brain tumor that left her totally disabled. The employer fired the employee to avoid responsibility for the wife’s medical care, the court noted, and tried to hide its motivation for doing so. Noting that firing an employee because he or she was disabled would be discriminatory under Mass. Gen. L. ch. 151B, the court held that the Flagg employee’s association with his disabled wife was also protected by law.

“When an employer subjects an otherwise satisfactory employee to adverse employment decisions premised on hostility toward the handicapped condition of the employee’s spouse, it is treating the employee as if he were handicapped himself–that is, predicated on discriminatory animus, the employer treats the spouse’s handicap as a characteristic bearing on the employee’s fitness for his job. The employee is thereby subjected to the type of ‘prejudice, stereotypes, or unfounded fear’ relating to handicapped individuals that c. 151B, § 4(16), seeks to protect against,” the SJC held. This conclusion, the court noted, is consistent with 30 years of MCAD decision-making.

The scope of Flagg is unclear, however, in the wake of a dissent that emphasizes two judges’ view of its limitations. While agreeing that the employee in Flagg was entitled to Chapter 151B protection, Justice Gants, joined by Justice Cordy, tossed aside MCAD precedent as a factor. “I am persuaded that the plaintiff in this case has stated a claim under § 4(16) for two reasons, neither of which arises from any deference to the commission’s interpretation of the statute,” Justice Gants wrote. Neither justice, it appears, believes that associational discrimination claims can be used as bases for claims that an employer failed to accommodate a non-handicapped worker. Neither seems to think the Flagg decision extends far beyond its own facts. Both think it important that Chapter 151B does not expressly prohibit associational discrimination.

Time will tell whether and to what extent the dissent’s view of this issue is adopted.