In Recent Decisions the SJC and MCAD Highlight the Broad Protections of Anti-Retaliation Law

Last week, the SJC decided City of Newton v. Commonwealth Employment Relations Board, a case considering what an employee must show to make out a prima facie case of retaliation under the Massachusetts public employee collective bargaining law. The week before, the MCAD decided MCAD and Nom v. Acton Auto Body Inc. et al., also assessing what evidence an employee claiming retaliation must show to make out a prima facie case.

City of Newton was brought on behalf of a Newton police sergeant who also served in leadership roles in his union. In those roles, he repeatedly came into conflict with the police chief as he asserted employees’ rights under their union contract. Two years after becoming the union’s president, the police chief involuntarily transferred the sergeant from a specialty assignment in the Traffic Bureau to the Patrol Bureau. In the Traffic Bureau the sergeant had worked a regular daytime schedule with weekends off; in the Patrol Bureau he had to work nights on a rotating schedule. The transfer came with an 8% pay increase for working nights, which the sergeant said was less important to him than the regular schedule he had before the transfer.

The union filed a charge with the Department of Labor, and eventually the Commonwealth Employment Relations Board (CERB) decided that the transfer was an adverse action, and that the City had not met its burden to show that the reason for the transfer was not retaliatory. The City appealed, and the Appeals Court decided that because the sergeant received the pay increase his CBA required, the transfer was not an adverse action.

The SJC considered the case under the burden-shifting framework applicable to discrimination and retaliation cases. It considered whether the union had established a prima facie case of retaliation, which the City disputed for two reasons: (1) it claimed the transfer was not an adverse action because the sergeant received a commensurate pay raise and some officers preferred that shift; and (2) that the union could not make a prima facie case of retaliation because it could not show the sergeant had a generally good employment record. The SJC rejected both arguments.

Relying on case law developed under G.L. c. 151B, the SJC noted that an adverse action is an action that objectively materially disadvantages an employee. The Court held that the pay increase tied to the transfer was something that should be considered in deciding whether the transfer was adverse but was not dispositive. The Court found that the CERB’s decision that the transfer was an adverse action was supported by the record.

The Court then considered whether an employee must have a good employment record to assert a retaliation claim, as the City asserted. The SJC made clear that a good work record is not a requirement for bringing retaliation claims, though it can be useful evidence for an employee to present.

In Nom, the MCAD held that where a victim of workplace harassment was transferred to a different work location, increasing his commute and expenses, the transfer could be an adverse action that supported a retaliation claim. The MCAD also reiterated that where it is necessary to separate two employees because one of them is harassing the other, the employer cannot involuntarily transfer the victim employee, even if transferring the harasser would create a hardship for the employer.

Finally, the MCAD addressed the employer’s argument that to prove causation in a retaliation case, the employee must show that the employer action with ill will towards the employee. The MCAD rejected this argument, noting that while proving animosity may be one way of proving retaliation, nothing in the statutory language requires that an employer act with hostile intent to prove retaliation. An employee must simply prove that the adverse action was taken “because of” the protected activity.

Together, these new decisions are a reminder that Massachusetts law prohibits retaliation, and defines retaliation broadly to protect employees.

If you have been retaliated against in the workplace, please contact our employment attorneys at 617-742-6020.