SJC Expands What Constitutes an Adverse Employment Action for Employment Discrimination

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The Massachusetts Supreme Judicial Court (the “SJC”) recently held that an employer’s failure to approve a lateral transfer request of an employee can qualify as an adverse employment action in the context of employment discrimination.

In Yee v. Massachusetts State Police(Mass. January 29, 2019),  the employee, a Chinese Asian-American police lieutenant, had requested a lateral transfer to a specific troop.  The employee was neither interviewed nor offered an opportunity to transfer.  Meanwhile, other employees, who were all white males and some younger than the employee, were transferred or promoted as lieutenants to the specific troop.  The employee filed a Complaint in Superior Court against the employer, alleging discrimination on the basis of race, age, and national origin for failing to transfer him to the specific troop.  The employer moved for summary judgment.

Massachusetts General Laws c. 151B, § 4prohibits employers from discriminating against their employees for reasons such as race, color, national origin, sex, religious creed, gender identity, or sexual orientation.

To successfully defend against a motion for summary judgment, the employee in Yee first had to provide evidence of a prima facie case of discrimination.  In other words, he had to in the first instance provide evidence from which a jury could infer that he was: (1) a member of a protected class (e.g., age, national origin, race); (2) his job performance was satisfactory; (3) his lateral transfer request was not handled the same as another employee who was not in the same protected class but was otherwise similar; and (4) the failure of the employer to approve the employee’s lateral transfer request constituted an adverse employment action.

The trial court awarded summary judgment to the employer because it determined that a jury could not infer that the employee suffered an adverse employment action.

In vacating the award of summary judgment to the employer, the SJC concluded that an employer’s failure to approve a lateral transfer request of an employee can qualify as an adverse employment action where the employee provides sufficient evidence that the two positions offer materially different compensation opportunities or materially different terms, conditions, or privileges of employment.  The employee in Yee had offered sufficient evidence.

If an employee establishes their prima facie case, the burden shifts to the employer to show that there was a legitimate reason for the adverse employment action.  If met, the burden shifts back to the employee to show that the employer’s stated reason for the adverse employment action was pretext.

The SJC remanded the case for further analysis.

For questions regarding employment discrimination, contact our attorneys at Fitch Law Partners LLP.


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