Page 36 - BusinessWest January 8, 2024

“Without both knowledge and a reasonable inference, associational discrimination will most likely be unactionable. Nevertheless,
it is important to stress to employees that discrimination and harassment based on protected class is prohibited, no matter the circumstance.”
However, there are ways to teach this kind of dis- crimination and harassment to frontline employees and make them aware enough of an associational-dis- crimination or harassment issue to report it.
First, employees should be aware that discrimina- tion or harassment based on protected class (e.g. race, religion, sexual orientation, ethnicity, gender, etc.) is prohibited. Along these lines, it is equally prohibited to discriminate or harass another employee based on the protected characteristics of someone with whom the employee associates. For example, it is illegal to use the knowledge that an employee has Jewish friends to discriminate against that employee and subject him to adverse employment actions based on that knowledge.
Second, it is important to stress that it is the knowl- edge of the employee’s associates’ protected classes that makes associational discrimination actionable.
An offhand comment by an employee that happens
to relate to an employee’s associates’ or relatives’ pro- tected class will not necessarily implicate associational discrimination, but making the same comment and directly referencing the associate or relative and their protected class will make for this implication. In this sense, if it is discriminatory or harassing to the associ- ate or relative, it will most likely be discriminatory or harassing to the employee.
If cornerstones of associational discrimination like these are taught and enforced, it will be less likely that an employer will be subject to the same fate as the above-referenced private school.
Takeaways
Associational discrimination can raise its head
in a variety of circumstances, including the contract- renewal scenario above; hiring, termination, and other employment decisions; as well as discriminatory and
harassing behaviors from employees.
Though it is more difficult to catch than scenarios in
which discrimination or harassment based on protect- ed class is direct, the pivotal elements of associational discrimination are knowledge of the associates’ or rela- tives’ protected class and the reasonable inference that the knowledge was a determining factor in the adverse employment decision. Without both knowledge and a reasonable inference, associational discrimination will most likely be unactionable. Nevertheless, it is impor- tant to stress to employees that discrimination and harassment based on protected class is prohibited, no matter the circumstance.
Further, a related claim to associational discrimina- tion is a retaliation claim for reporting discrimination or harassment perpetrated against another employee. In this scenario, an employee reports that another employee is being discriminated against because of their protected class, and then the reporting employee is subjected to an adverse employment action. This kind of ‘associational’ activity by employees is protect- ed, and an employer can be subjected to legal action if the report is not handled properly.
As associational discrimination and related retali- ation can be difficult to detect, it is prudent to contact legal counsel in order to avoid any potential liability and train staff to recognize and report associational- discrimination scenarios. BW
Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.
36 JANUARY 8, 2024 << LAW >> BusinessWest