Last month, the Tennessee Supreme Court narrowed the definition of retaliation under state law. Less than one month later, the Sixth Circuit Court of Appeals (which has jurisdiction over Tennessee, Michigan, Ohio and Kentucky) has issued a contrary ruling regarding what an employee must do to form the basis for a "whistleblower" or "retaliation" claim under federal law.

The New Case

In EEOC v. New Breed Logistics, three female and one male employee collectively received a $1.5 million jury verdict in a sex harassment case. Their claims involved both harassment and retaliation, based on the fact that they all were discharged within several weeks of telling a supervisor to stop harassing the three females.

The employer had appealed the verdict on the basis that the plaintiffs could not sue for "retaliation" because they had not complained of or otherwise reported the harassment to anyone aside from the alleged harasser.

The Sixth Circuit held that "asking the harasser to stop" did constitute "making a complaint of harassment" which was sufficient to make the plaintiffs "whistleblowers," such that they could sue for retaliatory discharge under Title VII, which is the federal anti-discrimination and harassment law.

What this Means to Tennessee Employers

The fact that there is now a different standard for "whistleblowing" or "retaliation" claims under Tennessee state and federal law will mean that the law a plaintiff employee (and their lawyers!) decide to sue under will make a big difference regarding the elements of a "retaliation" claim they must prove in order to avoid the case being dismissed. Please see our March 30 alert concerning the Tennessee Supreme Court's new narrowed definition of state law "whistleblowers" for more information on this distinction.

Specifically, if there is any question as to whether the plaintiff employee complained to Human Resources, another member of management, the EEOC, a lawyer, etc., but no question that he/she told the alleged harasser that his/her conduct was unwelcome, the employee will most likely sue under federal law in light of this new Sixth Circuit decision. This will mean many employers now will get a "head's up" before suit is filed, because a charge must be filed with the EEOC before a lawsuit can be filed under Title VII as opposed to under state law.

Interesting, last year, the Tennessee legislature also passed a new law which requires plaintiffs to choose to pursue their harassment, retaliation and discrimination claims under either state or federal law, as typically many lawsuits would assert the same claims under both federal and state law so as to try to get the benefit of whichever law ultimately proved to be more favorable to the facts of their case. This new law also made it clear that retaliation claims brought under Tennessee state law would be subject to a higher "sole cause" rather than a "motivating factor" standard. So, in light of this new law and the fact that there now are different elements needed to prove a retaliation claim under state versus federal law in Tennessee, employers are not likely to have to defend against the "kitchen sink" lawsuits of the past, which alleged every conceivable claim under both state and federal law "in order to see which ones ultimately would 'stick'" as depositions, etc. were taken.

What this Means to YOU

If you are a Tennessee employer, this development means you need to make sure your anti-harassment policy requires employees to report harassment to someone aside from the alleged harasser. As otherwise, you may never know the "complaint" was made, even though it now will "count" as such under federal law, even if all the victim employee did was ask the alleged harasser to stop.

You also can require supervisors to report any complaints of harassment made to them, including complaints regarding their own conduct, to Human Resources in your harassment policy. However, be prepared that it may be the rare person who decides to "self-report" complaints made about themselves to Human Resources rather than perhaps trying to "handle" them on their own – perhaps like the supervisor in the new Sixth Circuit case did – by simply getting rid of all the "troublemakers" before Human Resources even knows there is an issue.

This is the reason it is important to require the victim employee to come forward and do more than merely tell the alleged harasser to stop or that their conduct is unwelcome. While such policies may not provide a complete defense to a federal retaliation claim under this new Sixth Circuit decision, they will at least provide you with an argument as to whether the employee's failure to comply with them was reasonable or not. This will allow a judge or jury to possibly find that the employee did not act in good faith by only asking the alleged harasser to stop but not complying with your company policy to seek assistance beyond the harasser if he/she failed to do so or otherwise retaliated against them.