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August 12, 2013


In a recent opinion by the Supreme Judicial Court (SJC) - the highest Massachusetts state court - the Court confirmed that associational discrimination is a viable claim under G.L. c. 151B, the state anti-discrimination statute.  (Flagg v. Alimed, Inc., Mass., No. SJC-11182, July 19, 2013).  Generally, associational discrimination occurs when an employee suffers an adverse employment action as a result of a family relationship with a handicapped individual.  Such a claim had previously been recognized by the Massachusetts Commission Against Discrimination (MCAD), as well as federal courts construing analogous federal statutes, but until this opinion, the state high court had never addressed whether such claims were recognized under the Massachusetts statute.


In Flagg, the plaintiff was a former employee of a medical supply company of eighteen years, having received favorable performance reviews during his tenure.  In December 2007, the plaintiff's wife underwent surgery for a brain tumor and then received rehabilitative care.  As a result, the employee became responsible for child care, which required him to be absent from work for brief periods of time to pick up his daughter from school on certain days.  Over a two- week span, the plaintiff did not "punch out" of work when he went to pick up his daughter. His supervisor was aware of this and did not say anything.  In February 2008, the plaintiff's employment was terminated for having failed to punch out on certain days and receiving pay for that time.  The plaintiff filed suit, claiming that the stated reason for termination was false, that the real reason was his wife had a serious medical condition that rendered her totally disabled, and for which the employer, through its health plan, was financially responsible.  The Superior Court dismissed the claim, holding that a claim of associational discrimination was not recognized under state statutes.


On appeal, however, the SJC reversed the lower court and found that such a claim was viable.  The Court reasoned that a claim of associational discrimination is supported by the statutory language, the purpose of G.L. c. 151B, and the longstanding interpretation given the statute by the Massachusetts Commission Against Discrimination, and analogous provisions of Federal anti-discrimination statutes.  As stated by the Court:  "When 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."


As associational discrimination claims were previously recognized under federal law and by the MCAD, how to address or avoid such claims should already be included in employer trainings and processes.  Nonetheless, in light of the ruling and heightened awareness of such claims, employers would be well advised to review their training materials, processes and procedures to be sure that such claims are appropriately addressed.  Please feel free to contact us if you have questions about associational discrimination or other labor and employment matters.

Labor, Employment & Employee Benefits Group

Mirick O'Connell

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Worcester, MA  01608

t 508.791.8500

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Westborough, MA  01581

t 508.898.1501

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Mirick O'Connell is a full-service law firm with offices in Worcester, Westborough and Boston, Massachusetts.  The Firm's principal practice groups include Business; Creditors' Rights, Bankruptcy and Reorganization; Elder Law; Family Law and Divorce; Intellectual Property; Labor, Employment and Employee Benefits; Land Use and Environmental Law; Litigation; Personal Injury; Public and Municipal Law; and Trusts and Estates.
This client alert is intended to inform you of developments in the law and to provide information of general interest.  It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.