Rulings Blur the Lines on Associational Disability DiscriminationTwo recent rulings by Massachusetts appellate courts have both confused and clarified the state’s anti-discrimination statute, Mass. Gen. L. Ch. 151B, which bars employers from discriminating against employees based on their handicap/disability.
In July, the Massachusetts Supreme Judicial Court (SJC) ruled, in Flagg v. AliMed, that Ch. 151B can, under certain circumstances, protect an employee when the employee himself is not actually disabled but instead is associated with a disabled individual. Then, in August, the Massachusetts Appeals Court dismissed a similar lawsuit brought by an employee who claimed that he was terminated because of his association with his autistic son.
In Flagg, the employee had worked for AliMed for 18 years with good performance appraisals. Flagg was a salaried employee entitled to benefits under AliMed’s health-insurance plan. Unfortunately, his wife had to have surgery to remove a brain tumor, and Flagg then became responsible for caring for the couple’s children. Flagg asked for permission to occasionally be briefly absent from work to pick up his daughter from school, and his manager told him to do whatever he needed to do to take care of his family.
AliMed later terminated Flagg, however, allegedly because he had failed to punch out and had, therefore, been paid for hours he had not actually worked. Apparently, the real reason for the decision to terminate Flagg was that his wife had again been hospitalized, and AliMed did not want to be financially responsible for the enormous medical bills. Flagg sued, but the trial court dismissed his suit on the grounds that the plain language of the statute protects only a handicapped employee, not an employee who is associated with a handicapped person.
Flagg appealed, and the SJC overturned the trial court’s decision. The SJC concluded that, when an employer takes action against an otherwise satisfactory employee because of his spouse’s impairment, it is targeting the employee as the direct victim of its discriminatory attitude, punishing the employee as if he were the handicapped individual himself. Accordingly, the SJC ruled that Ch. 151B could be read to incorporate the concept of handicap discrimination based on association.
The Massachusetts Appeals Court’s decision in Lashgari v. ZOLL Medical followed the SJC’s decision in Flagg, but reached the opposite result. In Lashgari, the employee claimed that he was forced to resign because of mistreatment by the employer. The employee alleged that he told his supervisor in February 2010 that he could not work overtime because his autistic son required constant care. He was subsequently demoted by a different member of management and placed on a performance-improvement plan.
This demotion apparently led to severe emotional distress, and ultimately, the employee felt he had no choice but to resign. In its decision, the Appeals Court affirmed the trial court’s decision dismissing the case. Citing Flagg, the court ruled that Lashgari’s complaint did not allege any facts that would show that he was fired because of his association with his handicapped son. The court found no connection between Lashgari’s conversation about his son’s autism and the subsequent adverse employment actions imposed by another supervisor, and the timing of the demotion, by itself, was not enough to support a claim of associational disability discrimination under Ch. 151B.
Significantly, in a concurring opinion to Flagg, two justices raised their concern that the decision might be interpreted more broadly than the SJC had perhaps intended. Although the Flagg decision, in a footnote, states that it is not intended to address reasonable accommodations for employees who are associated with disabled individuals, the concurring opinion cautioned that this ruling should be strictly limited to cases where a spouse’s disability could, for example, increase the employer’s health-insurance expenses or where the employer might fear that an employee could contract a disabling or contagious disease through his association with a disabled person.
The SJC’s decision in Flagg makes it clear that an employer may not terminate an employee because of fears that its health-insurance premiums will go up, even if those expenses will not increase because of an employee’s own disability but instead because of a disabled individual associated with the employee. It is unresolved at this point whether the SJC’s Flagg decision will impact the ability of an employee to claim he is entitled to a reasonable accommodation for the disability of someone with whom he is associated.
Following the SJC’s decision, this case was returned to the Superior Court for trial, and we can imagine that the damages here will be hefty if the jury finds for Flagg.
Susan G. Fentin is a partner at the firm Skoler, Abbott & Presser, P.C., and editor of the Massachusetts Employment Law Letter; (413) 737-4753; [email protected]