SJC Recognizes 151B Action for Associational Discrimination

It is not every day that the SJC, Massachusetts' highest court, creates a new cause of action.  Indeed, it is quite rare that facts present themselves so outside the usual claims to necessitate a totally novel analysis.  However Flaggg v. Alimed Inc.,  presented just such a case, allowing the SJC to expand the reach of Chapter 151B to include associational discrimination.  

Flagg alleged that his employment was terminated because his wife's illness was costing the Company a lot of money in medical bills through its insurance and not because, as Alimed claimed, he was not clocking out when picking up his daughter during work hours.  Essentially, Flagg argued that Alimed was discriminating against him because of his wife's severe disability.  The Company had the case dismissed based on the argument that Mass. G. L 151B does not address the alleged discrimination.  And because of Alimed, now it does.  The SJC ruled that an employer cannot discriminate against an employee based on his association with a handicapped person and remanded the case for trial.  Employer's take heed, association discrimination will be popping up as the new category to watch for!      

Lessons On Bad Deeds and Last Chances....

Between Jerry Sandusky, Bernie Fine and Mike Rice, one might assume that big-team athletics coaches routinely act in wildly inappropriate ways, only to have management cover up their problems or wrist-slap them to save the program.  Of course in these recent notorious cases the actions eventually came to public light and blew up quickly and large.  While these sports-world tales have seemingly little to do with the more average workplace with its more average problems, they serve as cautionary tales -- specifically with regard to the importance of good employee management of misdeeds.

The key mistake made in each of these cases was the decision-makers NOT thinking about what would happen when the story of their response became known.  In the public world of sports, that is an unforgivable error.  But the same error can be similarly fatal in the average workplace when dealing with sticky situations.  If employers were to adopt the standard of "How would an article about this sound to me if I were reading it in the paper?" many problems could be avoided.

This standard cuts both ways -- it means freeing employers to act reasonably following an investigation, even when they may feel someone is 'untouchable' because they are the only Muslim/Jewish/gay/immigrant/disabled/over-40 employee or because the employee recently complained about harassment or took FMLA leave.  More importantly, it also means forcing employers not to look the other way or give "one last chance" or "cut a little slack" when a long-time or highly compensated or otherwise "good" employee does something egregious.  Of course, in most cases, when there is an employee issue, a measured, reasonable response is in order. Employees who are treated fairly and with respect tend to have loyalty and perform better.  The problems occur, however, when the actions or misdeeds are truly big or when the mistakes are smaller, but the perpetrator is higher up or "too important" to the Company.  In some cases, the analysis might require a more nuanced legal approach, but employers would be better off starting the analysis imagining how the action they are about to take -- or not take -- would sound in a national paper explaining the facts. If the thought makes you smile a little, you are likely doing the right thing.