I am currently involved in a sex discrimination case where one of the defenses is based on the claim that the defendant was just as hostile and demeaning to men as to women. (I disagree, but for purposes of this post, that’s not important). Put another way, the defendant is basically arguing that my client was not discriminated against on the basis of gender because men were treated as badly as women. What about this defense? Besides the obvious tactical question, (i.e., will a jury be receptive to this type of argument?), is this a legally viable defense? The answer is yes. To prevail on a gender discrimination claim under Title VII, a plaintiff must establish differential treatment based on sex. See, e.g., Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000)(concluding that the plaintiffs could not claim discrimination because they had alleged that their supervisor had been sexually harassing both of them by soliciting sex from each of them). Therefore, were a male manager to genuinely treat both sexes equally badly the argument would be that no violation of the law has occurred because Title VII is designed to prohibit discrimination. Title VII is not, as it is often said, a general civility code. It will be interesting to see how this defense presents at trial. Stay tuned for further developments.

I have been fairly busy recently working on a number of unpaid overtime cases under the Fair Labor Standards Act (FLSA) (click here). One of the cases is Monroe et al v. FTS USA, LLC et al., which is pending in the Western District of Tennessee. The case involves installers/technicians in the cable tv contracting business. I am working with the Nichols Kaster law firm in Minneapolis (click here) on the case. Yesterday, we received a Report & Recommendation from Magistrate Judge Cohn recommending that the case be conditionally certified as a collective action under the FLSA. See r-r.pdf. The next step is for notice of the case to be sent to all eligible persons/class members advising them of the opportunity to “opt-in” and join the case.

Have you ever heard of a “SLAPP” suit? “SLAPP” stands for “strategic lawsuit against political participation”. A SLAPP suit is a civil suit for damages brought against a person who has reported information to federal, state, or local agencies. Tennessee recognizes that “SLAPP suits can effectively punish concerned citizens for exercising the constitutional right to speak and petition the government for redress of grievances.” Tenn. Code Ann. 4-21-1002. Under Tennessee’s Anti-SLAPP statute, Tenn. Code Ann. 4-21-1003,

Any person who in furtherance of such person’s right of free speech or petition under the Tennessee or United States Constitution in connection with a public or governmental issue communicates information regarding another person or entity to any agency of the federal, state or local government regarding a matter of concern to that agency shall be immune from civil liability on claims based upon the communication to the agency.

There is no immunity if the person communicating such information knew the information to be false; communicated information in reckless disregard of its falsity; or acted negligently in failing to ascertain the falsity of the information if such information pertains to a person or entity other than a public figure.

Essentially, Tennessee’s Anti-SLAPP statute protects public citizens who report matters of public concern concerning public officials to government agencies. If, for example, a public official were to bring a defamation (libel or slander) action against the person who made the communication/report then the person would be able to seek immunity under the Anti-SLAPP statute. Importantly, a person prevailing upon the defense of immunity under Tennessee’s the Anti-SLAPP statute shall be entitled to recover costs and reasonable attorneys’ fees incurred in establishing the defense.

Times are tough. Many employees are suffering financially and are seeking bankruptcy protection. If an employee files for bankruptcy, can the employee’s employer terminate the employee because he/she has filed for bankruptcy? The answer is no.

11 U.S.C. § 525(b) provides that

No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt–

(3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act.

An interesting question based on the language of the statute on which federal courts appear divided is whether a person who anticipates filing bankruptcy but has not yet done so, may invoke the protections of 11 U.S.C. § 525(b). Compare In re Mayo, 322 B.R. 712 (Bankr. D. Vt. 2005)(taking an expansive and policy-based view and holding that acts based upon the threat or disclosure of a bankruptcy filing may be grounds for a cause of action under § 525) with In re Majewski, 310 F.3d 653 (9th Cir. 2002)(taking a narrow view of the statutory langauge and holding that employee who had not yet filed for bankruptcy when he was fired was not protected from termination under 11 U.S.C. § 525(b).

Here is the video link to my recent oral argument before the Miss. Sup. Ct. in the case of: Tunica County, Mississippi and Calvin Hamp, Sr., Individually and in His Official Capacity as Sheriff of Tunica County v. The Hampton Company National Surety, LLC, A Mississippi Limited Liability Company; James Dean, an Individual and James Hampton Gardner, an Individual. I posted on this case on 2/3/09. See below.

From the Mississippi College School of Law.

I am frequently asked questions about the legality of job references. Generally, concern is expressed by a recently terminated employee that the former employer has provided, or will provide, negative and/or false information to a prospective employer.

While many companies have a practice of not providing job references and only providing information regarding verification of employment, dates of employment, etc., there is no Tennessee law forbidding a former employer from providing information about the former employee’s job performance to a prospective employer.

In fact, Tennessee has a statute that specifically addresses disclosure of an employee’s job performance. The statute actually insulates employers from liability so long as truthful information is communicated. Under Tenn. Code Ann. 50-1-105,

Any employer that, upon request by a prospective employer or a current or former employee, provides truthful, fair and unbiased information about a current or former employee’s job performance is presumed to be acting in good faith and is granted a qualified immunity for the disclosure and the consequences of the disclosure.

The statute further provides, however, that the

presumption of good faith is rebuttable upon a showing by a preponderance of the evidence that the information disclosed was: (1) Knowingly false; (2) Deliberately misleading; (3) Disclosed for a malicious purpose; (4) Disclosed in reckless disregard for its falsity or defamatory nature; or (5) Violative of the current or former employee’s civil rights pursuant to current employment discrimination laws.

Therefore, false information communicated by a former employer to a prospective employer can give rise to a defamation (slander and/or libel) action under Tennessee state law. Further, false information communicated by a former employer to a prospective employer may also give rise to a retaliation claim under federal or Tennessee state law in certain circumstances. Of course, these types cases (defamation and retaliation) are often very difficult to prove because the prospective employer usually will not reveal to the employee what has been communicated by the former employer.

So how can an employee find out if their former employer is providing negative or false information to prospective employers? One place to start is Allison & Taylor, Inc. Click here.. For a pretty reasonable fee, this company will contact your former employer and attempt to determine what your former employer is really communicating about you to prospective employers.

Tennessee is a “right to work” state. But what does that mean?

Many people get the “right to work” concept confused with the “employment at will” doctrine.

Employment at will refers to the relationship governing employment agreements between employers and employees that lack a specified duration. Under this doctrine, which has been recognized in Tennessee for over a century (Payne v. Western & Atlantic R. Co., 81 Tenn. 507 (Tenn. 1884), an employer can terminate an employee for good cause, bad cause or no cause at all so long as the termination is not motivated by a reason that is illegal in nature (e.g. race or sex discrimination). Additionally, in an at will employment relationship, an employee can quit work without notice and not be held liable for breaching the employment agreement.

Right to work, on the other hand, generally refers to a person’s right/ability to work for an employer despite the person’s refusal to join the union that collectively bargains with the employer.

Under Tennessee’s “right to work” statute, T.C.A. 50-1-201, which was passed in 1947, provides:

It is unlawful for any person, firm, corporation or association of any kind to deny or attempt to deny employment to any person by reason of the person’s membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind.

Why did the Tennessee legislature feel it necessary to pass such a statute? Once upon a time, there were a number of “closed shops” in Tennessee, in which employers and unions agreed that the employer would not hire an employee unless the employee joined the union. The statute was a way to curtail and dilute union strength.

Of course, so few companies lack a union presence in Tennessee today that Tennessee’s right to work statute is rarely invoked in any manner.

I made my first argument before the Mississippi Supreme Court this morning. The issue concerned whether Mississippi sheriffs have the power to prohibit a bail bondsman from writing bonds. My co-counsel (James Harper) (James’ Website) and I represent bail bonding agents barred by the Tunica County Sheriff from writing bonds In Tunica County. The argument seemed to go well. Appellate advocacy is generally a pretty deep intellectual exercise, but I think it is also very important that the judges hear and feel the emotion and passion you have for your client’s case. The argument was broadcast live on the net and can be viewed by going to the Mississippi Supreme Court’s website. Click here. I even managed to squeeze in the word “freakish” to describe the position advocated by Tunica County, i.e., that Mississippi sheriffs are not restained by law from serving as prosecutor, judge and jury over bail bonding agents, rather than pursuing discipline by and through the Mississippi Commissioner of Insurance, which is the agency that regulates bail bonding agents.