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The Podium

Broadening the anti-discrimination law

In February 2008, Marc Flagg was fired by AliMed, a Dedham-based provider of medical and health care products, after an 18-year career with the company.

At the time, Flagg’s wife was receiving rehabilitative care after surgery in December to remove a brain tumor. His wife’s condition required Flagg to pick up their daughter from school and miss work between 2:55 p.m. and 3:20 p.m. on certain days.

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AliMed said it fired Flagg because he failed to punch in and out of work on those days, meaning he was being paid for time not worked. But Flagg said his supervisor was aware of, and approved, these brief absences. He also alleged that the company’s real motivation in firing him was to get out of the financial obligation of his wife’s expensive medical care. Flagg says his firing resulted in his having to deplete his retirement funds and savings.

Flagg sued his former employer. The case was dismissed by the Superior Court, but Flagg appealed to the Appeals Court and the Supreme Judicial Court decided to hear the appeal itself. The law at issue was the state’s antidiscrimination statute, which bars employment discrimination on the basis of a person’s handicap. The law applies to companies with six or more employees.

AliMed argued simply that the law did not apply because the handicapped person at issue was not the employee but the employee’s wife. On July 19, the SJC disagreed, overturned the dismissal and sent the case back to the Superior Court for further proceedings. The high court said, “When an employee subjects an otherwise satisfactory employee to adverse employment decisions based on hostility toward the handicapped condition of the employee’s spouse, it is treating the employee as if he were handicapped himself…” Doing so will violate Massachusetts’ anti-discrimination law, according to the SJC.

At the same time, the high court’s decision is limited in that it did not address whether the law requires employers to provide special accommodations to employees associated with a disabled person. In fact, in a concurring opinion, Justice Ralph D. Gants (joined by Justice Robert J. Cordy) wrote that “the court’s opinion does not suggest that an employee is required under (the law) to provide reasonable accommodation to an employee who is not himself handicapped to allow the employee to attend to important family matters…”

In other words, an employer cannot take action against an employee because of the employee’s relationship with a disabled person. And even though an employer may not need to provide special accommodations to such employees under the anti-discrimination law (an issue that remains an open question after this decision), consistency is important — an employee taking time off to care for his sick mother can’t be treated differently than one taking time off to take his son to camp, for example.

Katharine A. Crawford is an attorney at Fisher & Phillips.

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