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
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
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
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
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
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.
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
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
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)
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.
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.
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
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
In a footnote to this section, the SJC made an important further
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]
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
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.
1Klein also prevailed.