Massachusetts High Court Finds Failure To Grant Lateral Transfer May Be Discrimination

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...