Associational Discrimination Claims Under Massachusetts Law

An employee claiming "associational discrimination" alleges mistreatment by his or her employer because of the employer's animus toward the protected status (e.g., race, sex, disability, etc.) of someone with whom the employee associates. Such claims are well established in federal employment law,1 and for over thirty years have formed a basis for rulings by the Massachusetts agency that enforces the state's non-discrimination statute, the Fair Employment Practices Act (FEPA).2 It was not until July 19, 2013, however, that the Massachusetts Supreme Judicial Court (SJC), in Flagg v. AliMed, Inc.,3 approved an associational discrimination claim under FEPA. And even in view of the SJC's ruling in Flagg, the federal district court in Massachusetts, on November 13, 2013, rejected a FEPA associational discrimination claim in Perez v. Greater New Bedford Vocational Technical School District.4 Because both Flagg and Perez involved claims arising from an employee's association with a disabled person, the two rulings may, at first blush, seem inconsistent. If so, the following four-point clarification may be useful.

1. The core reason why associational discrimination law is developing so uncertainly in Massachusetts is that associational discrimination is not mentioned in the state statute being enforced.

   Massachusetts' primary non-discrimination statute, the FEPA, expressly prohibits discrimination based on an employee's own protected status.5 But unlike the ADA, the FEPA does not mention discrimination against an employee because of the protected status of someone with whom the employee associates. As a result, the SJC based its ruling in Flagg on the allegedly broader "objectives and purposes" of the FEPA, the interpretation already given to the FEPA by the Massachusetts Commission Against Discrimination, and analogous discrimination rulings by the federal courts.

2. Although the SJC's language in Flagg is broad, its holding about associational discrimination is narrow.

   According to the SJC in Flagg, the FEPA's anti-discrimination provisions can "only be understood as establishing an expansive, categorical prohibition against discrimination based on handicap in the workplace generally." As a result, reasoned the Court, "the concept of associational discrimination ... furthers the more general purposes of [the FEPA] as a wide-ranging law, 'seeking removal of artificial, arbitrary, and unnecessary barriers to full participation in the workplace' that...