Massachusetts SJC Holds Employers’ Denials of Lateral Transfers May Be Adverse Actions in Discrimination Cases
Massachusetts employers’ decision-making processes with regards to lateral, internal employee transfers are now subject to possible state law discrimination claims. On January 29, 2019, the SJC issued its decision in Yee v. Massachusetts State Police, SCJ-12485, holding that when two jobs at the same level for the same employer offer “material differences” in compensation opportunity, or in any other terms and conditions of employment, a denied lateral transfer to the more desirable position could be an adverse employment action under Massachusetts discrimination laws, found at chapter 151B of the Massachusetts General Laws. The decision vacated a grant of summary judgment for the defendant in the Suffolk Superior Court.
Plaintiffs bringing a discrimination claim in Massachusetts must prove that, among other requirements, they were subject to an “adverse employment action” because of their membership in a statutorily protected class of people. Warren Yee, a lieutenant in the Massachusetts State Police, claimed that he was repeatedly denied a transfer from one State Police troop to another because of his age, race, or national origin. The State Police, however, considered his transfer a lateral move. They accordingly argued that Yee could not meet his burden of proving that he suffered an adverse employment action – reasoning that a denial of a lateral transfer is not “adverse” because it leaves the denied individual in materially the same position as he was previously, and is therefore not akin to a denial of a promotion.
Taking up the issue for the first time, the SJC held that in some circumstances, such a denial can indeed be adverse. In Yee’s case, the Troop to which he wanted to transfer offered better opportunities for overtime and paid detail. Although the transfer would have otherwise left him with the same salary and benefits, the SJC held that denial of the mere opportunity to earn more compensation is an adverse action. Stated more broadly, the SJC held that if a plaintiff can show material differences between two positions, such as in the opportunity for compensation, or otherwise in the terms and conditions of employment, a denial of a lateral transfer request to the more favorable position could be an adverse employment action.
In these cases, plaintiffs will bear the burden of proving the desirability of the denied-position and must do so using objective factors. A plaintiff cannot simply claim an adverse action based on subjective disappointment or preference for the other position. The employee rather must prove that a reasonable employee in the plaintiff’s shoes would desire the transfer. The SJC, noting that Yee’s evidence to date raises an inference that the decision was actually adverse, remanded the case for further proceedings consistent with their decision.
Although it remains to be seen whether the lower court will hold that Yee suffered an adverse action, this ruling nonetheless arms employees with another basis to claim an adverse action in the context of discrimination and retaliation suits in Massachusetts.