An employee who claimed his employer fired him because it did not want to cover his disabled wife’s medical expenses could sue the employer for “associational discrimination” under Chapter 151B, the Massachusetts Supreme Judicial Court has found.
The employee argued that even though §4(16) — the section of Chapter 151B that bars disability discrimination — does not expressly protect individuals other than the actual disabled person, his claim was still covered by the statute because such discrimination creates a “formidable barrier” to an individual’s full participation in the workforce, undermining the intent of the statute.
The SJC agreed, reversing a Superior Court judge’s summary judgment for the employer.
“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, … [treating] the spouse’s handicap as a characteristic bearing on the employee’s fitness for his job,” Justice Margot G. Botsford wrote for the court. “[That subjects the employee] to the type of ‘prejudice, stereotypes, or unfounded fear’ relating to handicapped individuals that Ch. 151B, Sec. 4 (16) seeks to protect against.”
The 34-page decision is Flagg v. AliMed, Inc.
Plaintiff’s counsel Marc S. Alpert of Boston said a ruling to the contrary would have “gutted” Chapter 151B.
“To say that discrimination is limited simply to direct discrimination against a disabled person, a black person, a Muslim person or a Jewish person does not reflect the way discrimination works in the real world,” he said.
Alpert analogized the situation to receiving a coupon in the mail for a free oil change, going to get the oil change, and then receiving a $50 bill with an explanation that the oil change was free but that there was a charge for opening and closing the hood.
“It’s the same nonsense to say the statute protects the black or handicapped person from being discriminated against but not the white person or healthy person who associates with them.”
James J. Rooney of Schoeneck & King in Buffalo, N.Y., represented the defendant. He said the statute’s plain language mandated a different result.
“This case will no doubt have an impact on other cases in the future, as it allows employees to sue for disability discrimination when [they] themselves are neither disabled nor regarded as disabled,” he said.
At the same time, Rooney said, he was gratified that the court affirmed the lower court’s dismissal of a defamation claim brought by the plaintiff. Specifically, the plaintiff contended that his employer damaged his reputation in the community by making co-workers and others aware of its proffered reason for the termination — that he unethically generated unearned pay by not punching out when he had to cover for his disabled wife by leaving to pick up his daughter at school.
The SJC agreed with the trial judge that the plaintiff alleged insufficient facts to support such an allegation.
“[This] reaffirms the basic idea that you cannot file a lawsuit when you haven’t yet gathered facts to support your claim,” he said.
Boston employment lawyer Rebecca G. Pontikes co-authored with Jonathan J. Margolis and Beth R. Myers, both of Rodgers, Powers & Schwartz in Boston, an amicus brief on behalf of the National Employment Lawyers Association. Pontikes said while the federal Americans with Disabilities Act expressly provides for associational discrimination claims, the SJC’s ruling clears up any ambiguity as to the existence of a state-law cause of action under Chapter 151B.
That is important because there are no damage caps under 151B, unlike in federal court, and it gives plaintiffs the option of keeping their claim at the Massachusetts Commission against Discrimination instead of having to remove the claim to federal court, where litigation is far more expensive.
More broadly, the decision helps address the stereotyping that caregivers tend to face in the workplace, Pontikes said.
“For example, women with young children are often stereotyped as uncommitted and putting their children above their work. The same is true of those associated with disabled people,” she said. “Behind the health insurance cost issue, the assumption is that the person will always be more concerned, even while at work, about the person to whom they’re providing care.”
Reading Chapter 151B too literally, so as not to protect against discrimination based on such stereotypes, “would undermine the statute by writing discrimination into it through the back door,” Pontikes added.
James W. Bucking, a management-side employment lawyer at Foley Hoag in Boston, said he fears the SJC ultimately will expand the holding in the case to require employers to accommodate workers who need more time to care for a disabled family member.
“Justice [Ralph D.] Gants pointed out in his concurrence that the decision says nothing about accommodation,” said Bucking, who was not involved in the case. “It troubles me that Justice Gants felt the need to make that point when the majority could have made that same point if it agreed with him. …To me, it says he’s worried the rest of the court is going in the direction” of recognizing a reasonable accommodation requirement in the associational discrimination context.
Recognizing a duty to accommodate in that context would be particularly vexing for employers, Bucking noted.
“It opens a whole host of issues, some of which we can’t predict but some of which arise in this case” — but were not the basis for the plaintiff’s claim — “like needing to leave to pick up a child from school because a disabled spouse can’t do it,” he said. “Accommodation already is the most difficult challenge for employers, and this could compound it.”
New England Legal Foundation staff attorney John Pagliaro, who submitted an amicus brief on behalf of his organization, said that Flagg has the “lamentable effect of weakening the ‘plain language’ principle of statutory construction,” while introducing needless uncertainty into employment law.
“Other than the issues immediately decided, the law has become less predictable, … not more,” he said.
Plaintiff Marc Flagg had worked for defendant AliMed for nearly 18 years, apparently receiving positive performance reviews during that time, when, on Dec. 7, 2007, his wife underwent surgery to remove a brain tumor. She needed rehabilitative care afterward.
Flagg became responsible for the care of the couple’s children, which included having to leave work for about 30 minutes on certain days to pick up his daughter from school. His manager apparently told him to do what was necessary to care for his family.
During a three-week period, Flagg did not “punch out” while leaving to pick up his daughter. He claimed his manager knew but did not say anything to him.
On Feb. 4, 2008, AliMed fired Flagg, stating that it was doing so because he had failed to punch out and thus was paid for hours he did not work. The termination took place when Flagg’s wife was back in the hospital due to a recurrence of her brain tumor and resulted in the cancellation of Flagg’s health insurance and an initial denial of unemployment benefits.
According to Flagg, he had to deplete his retirement funds and all his savings, and he suffered mental anguish.
The plaintiff ultimately brought suit in Superior Court alleging “associational discrimination” under Chapter 151B. Judge Patrick F. Brady dismissed the complaint, ruling that associational discrimination was not recognized under state law.
Flagg appealed, and the SJC transferred the case from the Appeals Court on its own motion.
On appeal, the SJC rejected AliMed’s argument that, under the plain language of G.L.c. 151B, §4(16), the handicapped person at issue in a disability discrimination case must be the plaintiff himself, not a spouse.
“AliMed reads the section too narrowly,” Botsford said. “[A]though a statute’s words are of prime importance in a court’s effort to discern legislative intent, the words must be evaluated in the context of the overarching purposes of the statute itself.”
In adopting 151B, the Legislature recognized that employment discrimination can be subtle and indirect and harms both the targeted individual and society as a whole, Botsford said. That is why the Legislature expressly directed that the statute “be construed liberally” to accomplish its purposes, she said.
Read against such a backdrop, the protections under §4(16) logically extend beyond the disabled person to those associated with that person, she said.
“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,” Botsford said. “In light of the Legislature’s expansive definition of ‘handicap,’ and keeping in mind its command concerning liberal construction of the statute, we conclude that the language of Sec. 4 (16) is properly read to accommodate the concept of handicap discrimination based on association.”
Accordingly, the court concluded, the plaintiff’s claim should be allowed to proceed.