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.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.