Massachusetts Supreme Judicial Court Holds Denial of Lateral Transfer May Constitute Adverse Employment Action
On January 29, 2019, the Massachusetts Supreme Judicial Court issued a decision that addressed for the first time whether an employer’s failure to grant an employee’s lateral transfer request could support an employment discrimination claim in the matter of Yee v. Massachusetts State Police, SJC-12485. The court’s decision states that an employer’s denial of a lateral transfer request may constitute an adverse employment action where the denial results in a deprivation of opportunities for additional compensation or benefits.
Warren Yee, an Asian-American state trooper with the Massachusetts State Police, requested a lateral transfer from Troop H to Troop F each year from 2008 to 2012. Though the positions in both troops offered the same base salary and benefits, members of Troop F receive more opportunities for overtime pay and paid details than Troop H. Yee claimed that the state police never offered him an interview for the transfer, though seven white male troopers received transfers or promotions to Troop F as lieutenants during that period. In 2014, Yee filed suit against the state police alleging that he was unjustifiably denied a lateral transfer to Troop F on the basis of his age, race, and national origin, in violation of Massachusetts General Laws, Chapter 151B, Section 4.
The Court’s Analysis
In holding that a denial of a lateral transfer request may constitute an adverse employment action, the court noted that the language “adverse employment action” does not appear in Chapter 151B of the Massachusetts General Laws, but the court has defined the phrase as an act of discrimination against an employee “in compensation or in terms, conditions or privileges of employment.” Moreover, the court stated that the legislature intended that Chapter 151B be “construed liberally for the accomplishment of its purposes” and therefore required the court to define the phrase “adverse employment action” with the “liberality required to meet the statute’s broad remedial goals.” However, whether an employee has suffered an adverse employment action is determined on a case-by-case basis.
First, the court reasoned that a failure to grant a lateral transfer is an “employment action” made by another employee with supervisory authority whose actions are imputed to the employer. Next, the court determined that the denial of a lateral transfer is “undoubtedly ‘adverse’ where it would deprive the employee of the potential to earn additional ‘compensation,’ which — if motivated by discriminatory animus –” is strictly forbidden by Section 4. Thus, the denial of a lateral transfer request may constitute an adverse employment action “where there are material differences between two positions in the opportunity to earn compensation, or in the terms, conditions, or privileges of employment.”
The court noted that several federal courts—namely, the First and Seventh Circuit Courts of Appeals, as well as district courts in Massachusetts; Washington, D.C.; New York; and Ohio—have also held that the denial of opportunities to work overtime may support an unlawful discrimination claim.
The Yee decision expands the definition of “adverse employment action” under Massachusetts General Laws, Chapter 151B, which is significant when determining whether an employee has established a prima facie case of discrimination. Going forward, Massachusetts employers may want to ensure that supervisory employees conduct a careful analysis of the potential differences in opportunities for additional compensation and benefits between an employee’s current position and the position for which the employee has requested a transfer prior to denying the same.