Retaliation and Wrongful Discharge

Retaliation (also known as retaliatory discharge when it results in illegal termination) is a form of workplace discrimination. It is unlawful for a Tennessee employer to fire you for reporting illegal, or what you believed to be illegal, activity or for refusing to participate in these activities. Put simply, retaliation is when an employer “gets back” by firing or otherwise disciplining an employee for being a law-abiding citizen. Retaliation in Tennessee employment violates various federal laws, the Tennessee Human Rights Act and Tennessee’s whistleblower statute.

Termination is Not Retaliation

Retaliation can often be difficult to prove in Tennessee court.

As a contract employee in Tennessee, your employer can always terminate you for legitimate reasons. Without a contract, a Tennessee employer can fire an employee for nearly any reason under Tennessee’s Employment At-Will doctrine — except for retaliation or protected status discrimination. If you have been terminated for these reasons, you may be able to sue for reinstatement, back pay or other damages.

Unfortunately, suspicion is not enough to win a retaliation lawsuit; proof is required.

The Sixth Circuit Court (the Federal court region for Tennessee) has stated that the adverse employment action of a retaliation claim must be “materially adverse,” that is, it “must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Instead, retaliation claims need to be demonstrated by a termination, demotion in pay/title or reduction in responsibilities.

Retaliation cases are one of the fastest growing areas of employment law in Tennessee. Juries are more likely to believe retaliation for protected conduct than they are to believe your employer is ageist, sexist, racist or otherwise prejudiced enough to take action against you. But this does not mean the “adverse employment action” your employer took constitutes retaliation under Tennessee employment law.

Retaliation lawsuits rely on juries believing that a tangible action (your termination, transfer, demotion or failure to be promoted) is based primarily on your engaging in protected conduct (see below).

Protected Conduct in Tennessee Employment

Protected conduct is the legal term for actions that a Tennessee employer may not fire, punish or otherwise discriminate against the employee for taking. This includes filing complaints with government agencies, serving in the armed forces, asking for overtime pay you are due or taking maternity/family leave or other medical benefits—as long as these are done in good faith.

Protected conduct also extends to a Tennessee employee who opposes illegal discrimination, refuses to participate in illegal activity or reports illegal activity.

Who is Protected by Retaliation Protections?

Protected conduct typically involves direct involvement in the implementing or being directly subject to the illegal activity. Though some Tennessee retaliation cases have been won that involve an employee expressing condemnation of an action in which they were not a participant or to whose effects they were not subject, these are exceptions to the rule.

Retaliation is not present in instances where the employer refuses or takes action against the employee for criticizing their employer, for refusing to perform legal tasks or for requesting a transfer. Your employer may not be the most upright, friendly or fair person, but this does not mean that the company’s unkind actions meet the legal definition of retaliation.

Proving Employment Retaliation in Tennessee

Retaliation cases rely on establishing a cause and effect. If your employer intended to terminate your employment prior to you engaging a protected conduct, then your retaliation claim is weaken or even nonexistent in the eyes of a Tennessee court. While doing the right thing before termination, demotion or other disciplining action is commendable, you cannot protect yourself by engaging in protected conduct and then claiming retaliation. Your status prior to engaging in protected conduct and doing so in good faith are what matters.

The strongest retaliation cases are those that have the required materially adverse action (see above) taken against the employee shortly after he or she engaged in the protected action. For example, if your employer learned that you had filed a qui tam lawsuit against the company on Thursday afternoon and asked you without explanation to clean out your desk come Friday morning, your case for retaliation is strong.

Documented instances of negative or pressuring comments on the part of your employer can also strengthen your retaliation claim. If your employer emails you suggesting that there could be consequences for you taking Family Medical Leave prior to your being passed over several times for promotion, your case is strong. Likewise, if no such comments were made and you have only been passed up for promotion once, especially after a poor performance appraisal, then you most likely do not have a case.

Higgins Law Firm – Tennessee Employment Retaliation Lawyers

Nashville-born attorney Jim Higgins and his Tennessee employment retaliation attorneys and staff know the ins and outs of employment law and the loopholes corporate defense lawyers like to employ. As with all employment law cases, there are strict deadlines that must be met or you might lose all legal rights to file a retaliation lawsuit. If you have engaged in protected conduct that has resulted in retaliation by a Tennessee employer, contact the Higgins Law Firm today.

Disclaimer: The Tennessee employment law information presented on this page should not be construed to be formal legal advice, nor the formation of a lawyer- or attorney-client relationship. The employment law information on this site is presented and copyrighted by the Higgins Firm, a Nashville, TN-based law firm, and is not meant to solicit clients for employment matters outside the State of Tennessee. Matters outside of Tennessee or outside of Nashville, Chattanooga, Memphis and Knoxville will be reviewed by an employment lawyer licensed in the appropriate state. This site may be considered advertising by the Tennessee State Bar Rules