Lateral transfer denial could be 'adverse action' under 151B.


Byline: Eric T. Berkman

A State Police lieutenant could sue for discrimination under G.L.c. 151B after being denied a lateral transfer to a post with allegedly better opportunities for overtime pay and detail work, the Supreme Judicial Court has ruled.

Plaintiff Warren Yee, an Asian-American man in his 50s, claimed the State Police denied the transfer based on his age, race and national origin.

A Superior Court judge granted summary judgment to the State Police, concluding that the plaintiff could not show that the denial of a lateral transfer request in other words, a transfer to the same position but at a different location constituted an "adverse employment action," as defined by Chapter 151B.

But the SJC reversed.

"We hold that where there are material differences between two positions in the opportunity to earn 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 under c. 151B," Chief Justice Ralph D. Gants wrote for the SJC.

The 22-page decision is Yee v. Massachusetts State Police, Lawyers Weekly No. 10-017-19. The full text of the ruling can be can be found here.

'Real effects'

Plaintiff's counsel Jonathan J. Margolis of Boston said he was gratified by the court's recognition that a seemingly harmless decision like refusing a transfer can be a potential source of recovery for employment discrimination.

"The court has recognized that discrimination can have real effects, even when it seems the harm is minimal," he said, asserting that there was a documented loss to his client of at least $30,000 due to the transfer denial.

A spokesperson for Attorney General Maura T. Healey, whose office represented the State Police, declined to comment.

But Benjamin G. Robbins, a staff attorney with New England Legal Foundation in Boston, which submitted an amicus brief, said the decision is actually helpful to employers in that the court is reinforcing that the definition of "adverse employment action" is an objective standard rather than a subjective one.

Robbins explained that the benefit the employee allegedly would have received must be objectively measurable within the context of compensation, terms, conditions and privileges of employment and it must be something under the employer's control.

"Consistency in application of the law, adherence to precedent, and adherence to the plain language of the statute are all...

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