Nashville Bar Association
Tennessee Bar Association
TENNELA
NELA
Vanderbilt Law School

Discrimination

Federal and Tennessee law prohibit an employer from making employment decisions based on any of the following protected characteristics:

  • Race
  • Color
  • Creed
  • Sex (including pregnancy, sexual orientation, and gender identity)
  • Disability
  • National origin
  • Religion
  • Age (40 and up)
  • Genetic information

Unfortunately, unlawful workplace discrimination happens all the time. Most discrimination cases involve an employee being wrongfully terminated and replaced by an individual outside the protected class, or being treated less favorably because of his or her protected characteristic. This is referred to as a claim for disparate treatment.

To raise a presumption of discrimination, an employee must show he or she:

  • is a member of a protected class;
  • was qualified for the position;
  • suffered an adverse employment action [see examples below]; and
  • was replaced by an individual outside the protected class or treated less favorably than a similarly-situated person outside the protected class.

Together, these four elements are called a prima facie case of discrimination.

Once an employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions (e.g., bad performance, poor behavior, etc.). Once the employer does so, the employee must show the employer’s reason is pretext for discrimination.Pretext is just a fancy way of saying the employer’s stated reason is fake in an attempt to cover-up discrimination.

Usually, the first two elements of a prima facie case are easily established, but the third and fourth elements are often contested. Below is a breakdown of each prima facie element that an employment discrimination plaintiff must prove.

1. Member of Protected Class

First, you must show that you are a member of a protected class. This varies depending on several factors. For example, reverse discrimination can occur when a member of a majority protected class is discriminated against simply because he or she is a member of a majority protected class.

2. Qualified for the Position

This element simply asks, did you meet the qualifications for the position? Considerations may include experience, education, licensure, etc. Typically if you are already in the position, and have been successfully performing your duties for a period of time, this element will be easily established.

3. Adverse Employment Action

Below are common examples of adverse employment actions:

  • termination
  • demotion
  • suspension
  • pay cut (or being denied a pay raise)
  • eliminating or reducing job responsibilities
  • being passed over for promotion
  • others actions that affects the terms and conditions of your employment.

There are other types of adverse employment actions but the general idea is that the action must be more than a trivial harm. For example, a lateral transfer is probably not adverse enough to meet this standard.

4. Replaced by Individual Outside Protected Class or Treated Less Favorably Than Similarly Situated Non-Member

The fourth element can be established by showing you were replaced by someone outside of the protected class. If you were not replaced, then you must show that you were treated less favorably than similarly situated individuals outside of your protected class.

You and the non-class members (called comparators ) must be similarly situated in all relevant respects. Generally relevant factors include whether you and the comparator(s):

  1. engaged in the same conduct;
  2. dealt with the same supervisor; and
  3. were subject to the same standards.

These factors are not exhaustive and the relevancy of a particular factor can vary depending on the specific facts of your case. For instance, in some circumstances, you and a comparator need not have had the same supervisor.

If you have suffered from unlawful discrimination, contact a Nashville employment lawyer immediately at 615-823-1737 or curt@maskerfirm.com.

How Much Money is a Tennessee Discrimination Case Worth?

The value of a given case varies significantly based on many factors, most of which are outside of your control, including the severity of the discrimination, how much money you have lost in earnings and benefits, the type and quality of evidence, whether or not you reported the discrimination, and if the harasser or company has discriminated against workers in the past.

That said, there are four general categories of damages in discrimination cases:

  1. Lost wages and benefits (your former weekly earnings + value of benefits multiplied by the number of weeks you have been out of work)
  2. Compensatory aka emotional pain and suffering resulting from the discrimination
  3. Punitive (to punish and deter the employer for its discriminatory acts involving malice or reckless indifference)
  4. Attorney’s fees and expenses if you go to trial and win

Compensatory and punitive damages are capped under federal and Tennessee law based on the employer’s number of workers. These caps do not apply to race discrimination claims filed under 42 U.S.C. § 1981.

Statute of Limitations for Discrimination Claims in Tennessee

Discrimination claims have strict deadlines called statute of limitations. If you miss this deadline then you will be barred from going to court. If you may have claims do not wait, contact an employment lawyer right away to know your deadlines.

To preserve your federal law discrimination claims in Tennessee, you must file a charge of discrimination (EEOC Form 5) with the U.S. Equal Employment Opportunity Commission (EEOC) within 300 days of the date you were discriminated against. Just calling the EEOC and talking to someone does not constitute filing.

The only way to preserve your state law discrimination claims in Tennessee is to file suit. You may choose to file with the Tennessee Human Rights Commission (THRC) within 180 days of the date you were discriminated against, but filing with the THRC does not toll (pause) the one-year statute of limitations. If you file a civil lawsuit in Chancery or Circuit court, then pursuant to state law, THRC must administratively close its investigation of your complaint. You must bring your state law action within one-year of the date you were discriminated against (or terminated).

For cases involving state and federal claims, you must file with the EEOC for the federal claims while being mindful of the one-year deadline for the state claims. If the investigation has not concluded and the state deadline is approaching, your attorney will likely request that the Right to Sue letter be issued (this request may be submitted only after at least 180 days have passed since you submitted your charge).

If you have suffered from unlawful discrimination, contact an employment lawyer serving Nashville immediately at 615-823-1737 or curt@maskerfirm.com.

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