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...