New developments in anti-discrimination law, 2011

Issue January 2012 January 2012 By Dahlia C. Rudavsky

Expansion of protection from retaliation

This past year has seen major advances in the scope of protection from retaliation afforded employees and others. On the federal level, in Thompson v. No. American Stainless, U.S., 131 S. Ct. 863 (2011), the Supreme Court expanded protection from retaliation to the fiancé of an employee who had complained of discrimination, who had not himself made a discrimination complaint.

In Massachusetts, in Psy-Ed d/b/a Exceptional Parent Magazine and Joseph Valenzano v. Klein and Schive, 459 Mass. 697 (2011) (hereinafter Psy-Ed v. Klein), the Supreme Judicial Court made clear that G.L. c. 151B prohibits retaliation against former employees long after the employment relationship has ended. This article will focus on Psy-Ed and the changes it makes in Massachusetts law.

Psy-Ed v. Klein
, decided May 12, 2011, arose from a lawsuit brought by Psy-Ed Corp. and its CEO against its former employees, Kimberly Schive and Stanley Klein, in December 1999. Psy-Ed accused the two of violating G.L. c. 93A, interfering with its business, defaming it and conspiring against it.

Schive, who is deaf, had worked for Psy-Ed as an associate editor of Exceptional Parent Magazine. Soon after her employment ended in late 1996, she filed a complaint at MCAD alleging that she had been denied accommodations and experienced a hostile environment during her employment, and had been terminated, in part, because of her disability. Klein, Schive's boss, and editor-in-chief at the magazine, later submitted an affidavit supporting her claims.

In the fall of 1999, Schive and Psy-Ed participated in an MCAD-sponsored mediation. The mediation failed, in large part, when Klein's affidavit in support of Schive was shared with Psy-Ed. The MCAD was informed that the mediation had failed, and issued a probable cause determination on Dec. 2, 1999. Two weeks later, Psy-Ed filed suit against Klein and Schive. After filing administrative complaints, Klein and Schive each counterclaimed for, inter alia, retaliation.

A bench trial was held in Middlesex Superior Court in 1996. Prior to that time, all the affirmative claims against Schive had been dismissed, and a single defamation claim against Klein survived for trial. However, both of Schive's counterclaims survived, as well as Klein's counterclaims.

Schive prevailed at trial on both her counterclaims,1 but because the trial judge retired, judgment in her favor did not enter until 2009. Psy-Ed appealed, and the SJC sua sponte entered the case on its docket after briefing, apparently in order to clarify the scope of retaliation claims under G.L. c. 151B. The case was argued in January of 2011.

The SJC's decision is complex and dense, because of the long history of the case, its complicated factual background and the multiple claims to be addressed. Many key holdings are found in footnotes. What follows is a guide to the important points and nuances in the SJC's opinion that relate to its core holdings regarding retaliation claims under G.L. c. 151B.

I. G.L. c. 151B, §4(4) and (4A) prohibit retaliation against former employees

The SJC announced its core holding in the first paragraph of the decision, quoted below in full:

This case involves bitter litigation spanning more than a decade. It raises the question, among others, whether actions taken by an employer against a former employee may violate G.L. c. 151B, §4 (4) and (4A), sections of the antidiscrimination law that respectively prohibit retaliation and interference with a protected right. On this question, we conclude that an employer or other person may be liable to a former employee under these sections for retaliatory or interfering conduct that occurs after the employment relationship has terminated. 459 Mass. at 699.

But how did the SJC reach its decision? For years, plaintiffs and defendants alike have understood that to make out a prima facie case of retaliation, a plaintiff must show:

… [i]n the absence of direct evidence of a retaliatory motive … that "he engaged in protected conduct, that he suffered some adverse action, and that 'a causal connection existed between the protected conduct and the adverse action.'" 459 Mass. at 707 [citations omitted].

Massachusetts courts have often utilized the phrase "adverse employment action," not simply "adverse action," to describe what the employer had done to its employee.

Indeed, the SJC itself used the latter formulation in MacCormack v. Boston Edison Co., 423 Mass. 652, 662 (1996) and Lipchitz v. Raytheon Co., 434 Mass. 483, 505-506 (2001). Relying on these cases and on a close reading of "adverse employment action," employers have argued that only retaliation that affects workplace matters falls within the statute's prohibitions and that therefore, only actions taken against current employees can be said to fall afoul of the statute.

Schive successfully argued otherwise, both at trial and at the SJC. She showed that federal law under Title VII and a host of other employment statutes affords protection from retaliation to former as well as current employees; that G.L. c. 151B's wording is broader than Title VII's, so that our state law should certainly reach former employees who are clearly protected under Title VII; and the words "adverse employment action" appear nowhere in G.L. c. 151B.

Finally, she pointed out that in no prior SJC decision had that Court encountered and ruled squarely on the matter of protection of a former employee, although the SJC's discussion of a former employee's rights in Sahli v. Bull HN Information Systems, 437 Mass. 696 (2002) suggested that the SJC would find such coverage available.

The SJC adopted all these arguments in a few tight sentences. First, it dispatched the erroneous overreadings of its "adverse employment action" verbiage, dismissing that formulation as "shorthand," and a "convenient term of reference." 459 Mass. at 707.

In an important footnote, the SJC reviewed how the "shorthand" had evolved from federal decisions, at the same time pointing out that the narrow view had, all the same, been long before rejected by the U.S. Supreme Court:

This court first used the phrase "adverse employment action" in decisions in the mid-1990s that looked to Federal law for support in interpreting G. L. c. 151B. [citations]. Even as a matter of Federal law, however, "adverse employment action" is merely shorthand and is not confined to adverse actions taken directly in the context of an ongoing employment relationship. See Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 63 (2006) (Federal law recognizes that "employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace" [emphasis in original]); Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (former as well as current employees encompassed within meaning of "employees" in Title VII's prohibition on retaliation). 496 Mass. at 707, n.25.

Then, basing its ruling on the actual words of the statute, the SJC rejected the cramped view that many defendants (and courts) have propounded:

Perhaps because of the term "adverse employment action," confusion has arisen as to whether conduct challenged as retaliatory must target a current employee in order to fall afoul of § 4 (4) and (4A). We conclude that under the plain meaning of these sections, it need not. Section 4 (4) addresses action taken by "any person" against "any person," while § 4 (4A) concerns action taken by "any person" against "another person." In neither case does the statute expressly require that an employer-employee relationship exist at the time of the wrongful conduct, or at any other time. 459 Mass. at 708.

Next, with a nod to like reasoning in federal decisions under Title VII, the SJC addressed the broader statutory purpose:

… In light of the c. 151B's broad remedial purposes, it would be an error to imply such a limitation where the statutory language does not require it.  See G. L. c. 151B, § 9 (G. L. c. 151B to be "construed liberally for the accomplishment of its purposes") … For example, where an employer's discriminatory conduct results in an employee's termination, § 4 (4) and (4A) must necessarily expand beyond current employees to have the intended effect of protecting victims of discrimination from suffering further ill treatment as a consequence of exercising their rights under G. L. c. 151B. Cf. Robinson v. Shell Oil Co., 510 U.S. at 346 (restriction of statutory antiretaliation provision to current and not former employees would undermine Title VII's effectiveness "by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining"). Id. at 708-709.

Thus, the SJC followed the U.S. Supreme Court in extending protection from retaliation to former employees no longer vulnerable to adverse treatment within the workplace.

II. Even lawsuits may qualify as unlawful retaliation

The SJC next confronted (again) the issue that it had addressed in Sahli, supra: When can a lawsuit, which, after all, involves "State and Federal constitutional rights to seek judicial resolution of disputes," Psy-Ed at 709, comprise unlawful retaliation? The SJC answered its own question:

The filing of "sham" or "baseless" litigation, as distinct from "unsuccessful but reasonably based suits," is not a constitutionally protected right. [citation] Id. at 709.

In a footnote to this section, the SJC made an important further comment:

We do not suggest that only a "baseless" suit may be retaliatory. A suit that is not entirely baseless may nonetheless be retaliatory if it is not subjectively genuine. [citation] Id., n.27.

Examining the record, the SJC found that the lawsuit against Schive met the standard it had set, and then some, having been properly been found by the trial judge to be "sham" or "baseless." Id. at 10.

III. Protected activity that triggers an adverse employer response may long post-date the filing of the complaint

Finally, the SJC addressed an additional important question: What may a court look to in determining whether a causal connection may be drawn between protected activity and the allegedly retaliatory adverse action? Psy-Ed had pointed out that it sued Schive almost three years after she filed her MCAD complaint, and argued that given such a temporal gap, no inference of causality could be made linking the two events. This led to the SJC's last important holding on the subject of retaliation.

In a footnote, the SJC rejected Psy-Ed's argument that Schive's protected activity was too remote in time to have given rise to unlawful retaliation. The SJC explained that two different post-MCAD-complaint triggers might well have led Psy-Ed to sue: first, Schive's activities in the fall of 1999 in support of her MCAD claim, and second, the MCAD's December 1999 issuance of its probable cause finding:

… Here, the record supports the conclusion that it was Schive's active pursuit of her MCAD claim … that triggered [defendant-in-counterclaim's] angry response in December, 1999. More generally, we think it reasonable to believe that an employer might perceive the issuance of a probable cause finding by the MCAD as an indicator that a discrimination claim was not going to go away, and that an employer at that point may be tempted to retaliate against the employee's continued pursuit of a protected activity. In our view, § 4 (4) and (4A) forbid such a response. Id. at 712, n. 33.

The SJC's holding reflects a realistic appreciation of the mechanics of retaliation. An employer may assume that a complaining employee who has filed an MCAD charge will eventually lose interest in her case, and then be annoyed when she does not. Likewise, an employer may react badly when the MCAD takes action to keep the matter alive. Or the employer may more cynically wait for time to pass and await a future opportunity to retaliate remote in time from the original MCAD filing.

But with the SJC's new declaration about what may be held to comprise a proper basis for an inference of retaliation, employers would be well advised not to react emotionally as a discrimination case progresses.


Thompson and Psy-Ed make clear that employers that retaliate against those who have made and pursued discrimination claims do so at their peril. Whether an individual claims retaliation under state or federal law, employer-defendants will no longer be able to rely on courts taking a narrow view of whom the law covers.

Dahlia C. Rudavsky is a partner at the Boston employment and labor law firm of Messing, Rudavsky & Weliky PC. Rudavsky represented Kimberly Schive in
Psy-Ed v. Klein.

1Klein also prevailed.