This case dealt with the same unsettled question of Massachusetts anti-discrimination law as did Scott v. Encore Images, Inc., a Massachusetts Appeals Court case that NELF briefed in 2010. See 80 Mass. App. Ct. 661 (2011). Because the Appeals Court declined to rule on the question, no Massachusetts appellate court had yet ruled on whether an individual who is not handicapped has standing to sue for handicap employment discrimination under Mass. G. L. c. 151B, § 4(16) solely on the basis of that person’s association with someone else who is handicapped.
Here, Flagg alleges that he was fired not because of his repeated absences from work, as his employer contends, but because his wife’s disability would cost his employer’s health plan a great deal of money (the wife herself is not an employee). The trial court dismissed his claim on the grounds that Flagg was not handicapped and therefore lacked standing to bring a handicap discrimination claim on his own behalf. Flagg appealed to the Appeals Court, and the Supreme Judicial Court took the case sua sponte and issued a request for amicus briefing.
Flagg’s argument rests largely on the fact that the Massachusetts Commission Against Discrimination (“MCAD”), which is the agency charged with implementing c. 151B, recognizes such associational standing and advocated for it vigorously in a letter the agency filed in Scott.
NELF filed an amicus brief supporting AliMed and arguing that the plain language of the statute renders it impossible for Flagg to have a claim under c. 151B. As NELF demonstrated, the clear, unambiguous language of § 4(16) and related sections of c. 151B give only a handicapped person a claim for handicap employment discrimination when the discrimination has occurred “because of his handicap.” It is unlike the federal Americans with Disabilities Act, which expressly provides for claims based on association.
NELF also argued that no deference is owed to the MCAD’s view of this issue because deference is not warranted where the language of a statute is clear and unambiguous, as here, much less when the agency’s reading of the statute is directly contrary to the statutory language, as is also the case here. NELF undertook a rebuttal of the reasoning the MCAD used its administrative decisions recognizing this type of claim. Since Flagg has incorporated into his argument the letter the MCAD filed with the Appeals Court in Scott, NELF also rebutted the arguments the MCAD makes there.
In both instances, the main theme of NELF’s rebuttal was that the agency’s view of the law in this case has been determined exclusively by broad policy considerations and that the agency has not paid even token heed to the actual text of the law.
In its July 2013 decision, the Court held that Flagg stated a claim. Sidestepping the plain language of the statutes, the Court looked to a few select decisions decided under the “analogous” federal Rehabilitation Act. In those cases a handicapped person who was the primary object of the act’s protection was undisputedly discriminated against because of his handicap, and the cases dealt solely with consequential harms flowing to third parties from that clearly unlawful act. The Court did not explain in what way this is an analogy to a situation in which no handicapped employee protected by c. 151B was discriminated against “because of his handicap.” The Court’s decision also creates a question about what grounds justify other rulings of the MCAD, unrelated to handicap discrimination, in which the agency has found associational standing, again, directly contrary to the plain language of c. 151B.