“Guilty by Association”: Understanding Indirect Employment Discrimination

Employers of all sizes should understand the difference between direct and indirect claims for employment discrimination.   As a result of the Supreme Judicial Court’s decision in Flagg v. AliMed, Inc. last year, both forms of discrimination are now explicitly recognized in Massachusetts, and can result in monetary damages and other sanctions being assessed against employers.    The Flagg case is significant, as indirect discrimination or “associational bias” claims typically arise in factually complex situations that may not be obvious to managers and other HR decision maker.

Indirect discrimination claims are based on the aggrieved employee’s association with a third party who is a member of the group that is alleged to be looked upon unfavorably by the employer.   For example, the following scenarios may present questions of “associational bias” before the state and federal of Massachusetts:

1)  A female employee’s husband is partially disabled and, within a year of his accident, she is terminated.     She believes her termination has been motivated by the employer’s desire to avoid paying her husband’s medical expenses (this issue was in fact litigated, and decided in the employee’s favor in Flagg).

2)  The Director of a local youth camp is terminated for having a gay son or   daughter participating in the state chapter of a well-known LGBT group.

3)    Two males, a fourth generation Irishman and a first generation Iraqi, are cousins through marriage and work together at ABC Engineering Corp. in Boston.  A new supervisor terminates the Iraqi’s employment within six months of assuming his position, and subsequently demotes the Irish engineer based on his relation, friendship and vocal opposition to the Iraqi cousin’s termination.

4)   Shelly works for a local office supply company owned by a state representative known for his pacifist views, with whom Shelly grew up with.   Shelly is now married to an active-duty member of the United States armed forces, and both she and her husband are active participants in a state-wide campaign for veterans’ preference legislation.   Shelly is transferred to another office 60 miles away from  her hometown because of her marriage and advocacy.

As you can see, the “association” in question can arise out of both familial relationships and civic affiliations.   Employers may justifiably argue in many associational bias claims that the facts presented do not suggest any outright hostility or animosity towards the protected class, but instead reflect a simple cost-benefit analysis – “financial bias,” if you will – or protected political speech.

The United States District Court in Massachusetts has highlighted two critical factors in analyzing associational bias cases.   First, whether the employee in question is subject to the same harassment, stereotyping or intimidation as that commonly experienced by actual members of the protected class; for example, the Court would be interested in whether homophobic or anti-Arabic slurs had been used around the youth camp Director, or the Irish engineer in the examples above.   Second, the courts will analyze whether the alleged association is with a specific individual or discrete group of individuals, as opposed to general advocacy on behalf of an entire class.   In  Perez v. Greater New Bedford Vocational Technical, the District Court recently dismissed a claim for associational discrimination based upon a teacher’s advocacy for the high school’s disabled student population, holding that such a relationship was too attenuated to trigger protection under the applicable discrimination laws.

Often, the final decision makers on personnel changes do not have day-to-day contact with company managers, let alone the employees that they have been advised to demote, transfer or terminate.   The best way to avoid associational discrimination claims is for these decision makers to meet with both their lower-level managers and employees prior to making any significant change with respect to one’s terms of employment. This is especially true if such a change has been advised on the basis of standardized performance reviews or improvement plans.     Any previously “unspoken issues” should be weeded out and addressed before they appear in a future claim for employment discrimination.