A New Cause of Action: Massachusetts High Court Rules That Denying a Lateral Transfer Request Could Constitute Discrimination
February 08, 2019
On January 29, 2019, the Massachusetts Supreme Judicial Court held that failing to grant a lateral transfer for discriminatory reasons may constitute an “adverse employment action” that violates Massachusetts law, G.L. c. 151B. An employee may therefore be able to recover for illegal discrimination even if the position requested provides exactly the same base salary and benefits as his or her current position. The decision expands the scope of potential discrimination claims under Massachusetts law and may make it more difficult for employers to prevail on motions for summary judgment.
In Yee v. Massachusetts State Police, Warren Yee, a lieutenant in the Massachusetts State Police who identified as a Chinese Asian-American, requested a transfer from Troop H to Troop F in December 2008. Although lieutenants earned the same base pay and benefits regardless of station, Yee expected that Troop F would offer additional compensation through opportunities to work overtime and on details. In the years following Yee’s transfer request, the State Police transferred or promoted several white troopers to Troop F in the position of lieutenant, but Yee was never interviewed for a transfer. In September 2014, Yee lodged an internal complaint of discrimination on the basis of age and ethnic background. In April 2014, he filed a complaint in the state Superior Court.
The State Police moved for summary judgment. The trial court granted the motion because, in its view, Yee failed to establish that he had suffered any adverse employment action. The judge found that Yee failed to show that a lieutenant at Troop F “automatically” or “routinely” earned more money than a lieutenant at Troop H. The judge also found it insufficient for Yee to rely upon testimony of a lieutenant who said he earned over $30,000 more per year in overtime and detail pay after being transferred to Troop F from Troop H. The trial court said it discounted this evidence because it concerned “the experience of only one of the nine potential comparators.”
The Supreme Judicial Court’s Decision
Yee appealed and the Supreme Judicial Court (“SJC”), the highest appellate court in Massachusetts, vacated the summary judgment decision. The SJC decision turned on its interpretation of what can constitute an “adverse employment action,” a phrase that does not appear in the text of the antidiscrimination statute. The SJC held that “where an employee can show that there are material differences between two positions in the opportunity for compensation, or in the terms, conditions, or privileges of employment, the failure to grant a lateral transfer to the preferred position may constitute an adverse employment action under c. 151B.”
The State Police argued that Yee’s discrimination claim failed because refusing a transfer may constitute an adverse action only where the transfer would have constituted a promotion. In rejecting that argument, the SJC held that a plaintiff need only put forth evidence of an “objective indicator of desirability” that would “permit a reasonable factfinder to conclude that the sought for position is materially more advantageous.” Here, the SJC concluded that Yee had produced sufficient evidence that Troop F offered increased opportunities for overtime and paid details. Although the court acknowledged that the evidentiary record on this point was “rather sparse,” it noted that the initial burden of establishing a prima facie case in the summary judgment context requires a “small showing” and is “not intended to be onerous.”
On its face, the SJC’s ruling is not particularly surprising. According to Yee, his transfer request was passed over for years while multiple white troopers were provided the opportunity to move to Troop F. Further, Yee presented evidence that at least one of these lieutenants earned substantially increased compensation through overtime pay and paid details after being transferred from Yee’s troop to Troop F. This showing was sufficient to defeat summary judgment so that Yee would have the opportunity to try to prove his case at trial.
At the same time, the Yee decision theoretically alters the employment discrimination landscape in several respects. The Yee ruling opens the door, under certain circumstances, to discrimination claims against Massachusetts employers for failing to grant a request for a lateral transfer. Even if the base salary and benefits of the two positions are identical, the employee may be permitted to challenge refusal of a transfer as an “adverse employment action” by claiming there are material differences between the positions that make the one sought by the employee more desirable.
The SJC’s ruling also raises wider questions about the evidentiary proof required to defeat a defendant’s motion for summary judgment on a discrimination claim. In this case, the testimony of only one of nine potential comparators concerning the pay differential between the two positions, described by the SJC as “sparse” evidence, was considered sufficient to make out a prima facie case. Whether this rationale will discourage trial judges from seriously considering summary judgment motions by defendants in future discrimination cases remains to be seen.
It may also prove significant that the SJC did not enumerate the “objective” factors to establish that a lateral position sought by an employee is sufficiently preferable such that denial could give rise to a discrimination claim. The SJC stated that the “adverse employment action” analysis must be made on a case-by-case basis. As a result, it is not entirely clear where to draw the line between the verifiable benefits of a lateral position and an employee’s subjective, speculative reasons for seeking a job transfer. While the ability to earn more overtime or other compensation after a transfer may be quantifiable, what about claimed opportunities for training, further promotion, exposure to mentoring or other potential opportunities that may be less tangible and harder to predict? The Yee holding may leave such questions open to litigation and further interpretation at the trial court level.
Finally, there is significant language in the Yee opinion cautioning that the potential for unlawful bias is particularly problematic where subjective procedures are used to determine which candidates receive a lateral transfer. In Yee, the State Police did not have a policy governing the criteria or process for transfers of lieutenants. Rather, when there was an open position, the troop commander had broad discretion to nominate a lieutenant as a candidate for transfer, and the superintendent approved or denied the nomination. The Yee case serves as a reminder that employers should consider regularly reviewing their policies and procedures concerning transfers to confirm that such materials establish objective standards and that these standards are applied consistently. Decisions to transfer or promote employees should be supported by documented, legitimate business reasons.