Massachusetts Supreme Judicial Court Expands Definition of “Adverse Employment Action”

Yee is a Chinese-American employed as a lieutenant for the Massachusetts State Police. Beginning in December 2008, Yee requested a transfer to State Police Troop F, which is headquartered at Logan International Airport. Yee claimed that there were better opportunities for overtime and paid details at Troop F. From 2008, when Yee made his initial request, through September 2012, the State Police had either transferred or promoted seven troopers to Troop F in the position of lieutenant. All were white males and five of the seven troopers were younger than Yee when they became Troop F lieutenants. During 2012, Yee complained of discrimination because of his age and ethnic background to the State Police Superintendent. Yee eventually filed a Superior Court complaint alleging race, age and national origin discrimination. The trial court judge allowed a motion for summary judgment by the State Police, concluding that the jury would not reasonably find Yee had been subjected to an adverse employment action because he was denied a lateral transfer. Yee timely appealed the summary judgment decision.

Under Massachusetts state law, where an employer discriminates against an employee, but the discriminatory act falls short of being an “adverse employment action,” the employee has no remedy. In Yee, the SJC held that the denial of a lateral transfer is “adverse” if the employee is deprived of the potential to earn additional compensation. The SJC concluded 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….”

The Yee case broadens the circumstances under which employees may sue claiming an adverse employment action. As a result, employers must take special care when denying lateral transfers, or making other decisions that negatively affect employees’ terms, conditions or privileges of employment. These decisions may be deemed to be discriminatory and expose the employer to liability under Massachusetts’ law.