Seyfarth Synopsis: On January 29, 2019, the Massachusetts Supreme Judicial Court held that the failure to grant a lateral transfer may be the basis of a discrimination claim under Massachusetts anti-discrimination law where an employee can show there are material differences between the two positions in the opportunity for compensation, or in the terms, conditions, or privileges of employment.
To bring a discrimination claim under Massachusetts law, an employee has to show that he was subjected to an "adverse employment action." Some actions, such as firing an employee, are obviously adverse employment actions. But other actions are not. In this case, the Massachusetts Supreme Judicial Court addressed whether a failure to grant a lateral transfer from one position to another can be an "adverse employment action," even where the base pay and benefits of the two positions are the same.
Plaintiff Warren Yee is a Massachusetts State Police lieutenant who immigrated from China. In December 2008, Yee requested a transfer from State Police Troop H in South Boston to Troop F at Logan Airport in East Boston. State Police lieutenants earn the same base pay and benefits regardless of their station. But Yee claims — based on the testimony of one trooper who earned more in Troop F than in Troop H — that the potential for compensation in Troop F is greater because there are more opportunities for overtime and paid details in Troop F.
Between 2008 and 2012, several troopers were either transferred or promoted to the position of lieutenant in Troop F, but Yee never received an interview despite his request for a transfer. Yee brought suit in 2014 alleging that the failure to allow him to transfer to Troop F amounted to age, race, and national origin discrimination. The State Police moved for summary judgment, arguing that no reasonable jury could find an "adverse employment action" where the State Police simply declined to provide Yee with a transfer that would not have changed his base pay or his benefits.
The Court acknowledged that the denial of Yee's request for a transfer did not affect his base pay or his benefits. However, the Court found that where an employee can show material differences between two positions in the opportunity for compensation or any other material differences in the terms, conditions, or privileges of employment, the failure to grant a lateral transfer between the two positions could be an adverse employment action. Because Yee showed a higher opportunity for compensation in Troop F, the Court found that Yee could bring a discrimination claim based on the failure to transfer him.
Employers should proceed with caution on transfers just as they do on hiring, promotion and termination decisions. Like those other decisions, a failure to grant a lateral transfer may be the basis of a discrimination claim if the employee is able to offer evidence that the positions differ in opportunities for compensation or in the terms, conditions, or privileges of employment.
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