EEO - Discrimination: Tennessee
Federal law and guidance on this subject should be reviewed together with this section.
Author: James L. Holt, Jr., Jackson, Shields, Yeiser & Holt
- The Tennessee Human Rights Act prohibits employment discrimination because of race, creed, color, religion, sex, age, or national origin (including ancestry), and retaliation. By separate statute, the Tennessee Disability Act, Tennessee law prohibits discrimination because of mental, physical or visual disability. See Discrimination Under Tennessee Law.
- The Tennessee Human Rights Act generally covers employers with eight or more employees. See Coverage.
- The bona fide occupational qualification defense is recognized under Tennessee law. See Bona Fide Occupational Qualification Defense.
- The Tennessee Commission on Human Rights receives, investigates and handles claims of harassment. See Administrative Process and Judicial Proceedings.
- Various municipal and local laws address discrimination in employment. See Municipal Law.
- Tennessee law also prohibits discrimination against employees engaged in the off-duty use of tobacco. See Discrimination Based on Off-Duty Tobacco Use.
- Employers in Tennessee are prohibited from discriminating against employees based on union membership or lack thereof. See Free Association Protection.
- Localities including Davidson County, Shelby County and Knoxville have requirements pertaining to discrimination. See Local Requirements.
Discrimination Under the Tennessee Law
The Tennessee Human Rights Act (THRA) prohibits discrimination against any employee or applicant with respect to hiring, discharge, compensation, or other terms and conditions or privileges of employment based on race, creed, color, religion, sex, age, or national origin (including ancestry). +Tenn. Code Ann. § 4-21-401. By separate statute entitled the Tennessee Disability Act (TDA), Tennessee prohibits discrimination in employment, based solely on a mental, physical, or visual disability unless the disability to some degree prevents the employee from performing the duties required for the job. +Tenn. Code Ann. § 8-50-103.
The THRA covers the state and its political or civil subdivisions, employers with eight or more employees, labor unions, or any person acting as an agent of an employer, directly or indirectly, and employment agencies. +Tenn. Code Ann. § 4-21-102(5). The THRA does not apply to employees who are employed by their parent, spouse, or child, nor does it apply to persons employed in the domestic service of another. +Tenn. Code Ann. § 4-21-401(b). The Tennessee Disability Act covers the state or any department agency, institution or political subdivision of the state, and any private employer. +Tenn. Code Ann. § 8-50-103.
As mandated by the Tennessee Human Rights Commission, every employer covered by the Tennessee Human Rights Act must post the Tennessee Discrimination in Employment poster.
Protected Classes Under Tennessee Law
The THRA prohibits employment discrimination on the basis of age where the individual is age 40 or older. +Tenn. Code Ann. § 4-21-401; +Tenn. Code Ann. § 4-21-407(b). However, it is not unlawful for an employer to take action based on age where age is a bona fide occupational qualification reasonably necessary to the normal operation of the business. +Tenn. Code Ann. § 4-21-407(a)(1). It is not unlawful for an employer to observe the terms of a bona fide seniority system or benefit plan as long as it is not a subterfuge to evade the age discrimination law. +Tenn. Code Ann. § 4-21-407(a)(2). Tennessee's age discrimination law does not prohibit compulsory retirement of any employee who has attained sixty-five (65) years of age and who for the two year period immediately before retirement was employed as a bona fide executive or high policy making position, and entitled to a non-forfeitable annual retirement benefit that equals at least forty-four thousand dollars ($44,000.00). +Tenn. Code Ann. § 4-21-407(d).
The THRA prohibits employment discrimination on the basis of sex. +Tenn. Code Ann. § 4-21-401(a). However, it is unlawful for an employer to hire or employ on the basis of sex where sex is a bona fide qualification reasonably necessary to the normal operation of the business. +Tenn. Code Ann. § 4-21-406. Tennessee law recognizes sexual harassment as a prohibited form of unlawful sex discrimination. Employers may raise as an affirmative defense that:
- The employer exercised reasonable care to prevent the harassment; and
- The employee unreasonably failed to take advantage of corrective opportunities provided by the employer; or otherwise unreasonably failed to avoid harm.
See Parker v. Warren County Util. Dist., +2 SW3d 170 (Tenn. 1999).
The THRA prohibits employment discrimination on the basis of religion or creed. +Tenn. Code Ann. § 4-21-401(a). However, the prohibition does not apply to religious corporations, associations, educational institutions or societies with respect to individuals employed to carry on religious activities or where religion is a bona fide occupational qualification. +Tenn. Code Ann. § 4-21-405 and +Tenn. Code Ann. § 4-21-406.
National Origin Discrimination
The Tennessee Human Rights Act provides that it is not a discriminatory practice for an employer to institute a policy requiring all employees speak only in English at certain times when the employer has a legitimate business necessity for such a policy, including, but not limited to, the safe and efficient operation of the employer's business, as long as the employer provides notice to employees of the policy and the consequences of violating it. +Tenn. Code Ann. § 4-21-401(c).
Tennessee follows the federal guidelines in interpreting the THRA, including the Equal Opportunity Commission's (EEOC) Guidance on Speak English Only Rules. +Tenn. Comp. R. Regs. § 1500-01-01-.04 (adopting the EEOC's Guidance on Speak English Only Rules).
The TDA prohibits public and private employers from discriminating in the hiring, firing, and other terms and conditions of employment against any employee or applicant based solely upon any physical, mental or visual disability, unless the disability to some degree prevents the employee or applicant from performing the duties required by the employment sought or impairs the performance of the work involved. +Tenn. Code Ann. § 8-50-103(a). The TDA also prohibits employment discrimination on the basis of an employee's use of a guide dog. Individuals aggrieved by a discriminating practice on the basis of disability may file a claim with the Tennessee Human Rights Commission who is authorized to enforce this law according to the procedure provided in the THRA. +Tenn. Code Ann. § 8-50-103.
Under the TDA, a disability is defined as:
- A physical or mental impairment that substantially limits one or more of such person's major life activities;
- A record of having such an impairment; or
- Being regarded as having such impairment.
Tennessee law specifically excludes current, illegal use of, or addiction to, a controlled substance. +Tenn. Code Ann. § 4-21-102(9) (B).
Gender Identity/Sexual Orientation Discrimination
The THRA does not cover discrimination based on sexual orientation or gender identity.
Under the THRA discrimination based on sex refers only to the "designation of the person as male or female as indicated on the person's birth certificate." +Tenn. Code Ann. § 4-21-102.
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.
Tennessee employers should be careful when advertising open positions and avoid using any language which tends to "influence, persuade, dissuade, encourage, discourage, attract, or repel any person or persons because of their race, color, religion, national origin, or sex," as doing so is a discriminatory practice under the THRA. +Tenn. Comp. R. Regs. § 1500-01-02-.05(7).
Tennessee employers are prohibited from circulating or printing any advertisement seeking applicants that is segregated on the basis of race, color, religion, national origin, or sex, or under any column heading that overtly, subtly, directly, or indirectly expresses any such limitation, specification, discrimination, or preference. +Tenn. Comp. R. Regs. § 1500-01-02-.05(1).
Employers also may not print or circulate any advertisement seeking applicants that expresses, directly or indirectly, any limitation or preference as to race, color, national origin, age or any other protected characteristic, absent a BFOQ for any such restriction. +Tenn. Comp. R. Regs. § 1500-01-02-.05(2).
Employers should make sure to use gender-neutral job titles in all advertisements. +Tenn. Comp. R. Regs. § 1500-01-02-.05(3).
The THRA's retaliation provision has been amended to remove any claims based on individual supervisor liability. Therefore, an employee may no longer file a claim against his or her supervisor, but only against his or her employer.
Bona Fide Occupational Qualification Defense
The Tennessee Human Rights Act recognizes the right of employers to hire or employ persons on the basis of religion, sex, or age where religion, sex, or age is a bona fide occupational qualification reasonably necessary to the normal operation of the business. +Tenn. Code Ann. §4-21-405 and +Tenn. Code Ann. §4-21-406.
Regulations regarding employer advertising issued by the THRC also include national origin as a protected class in its BFOQ definition. +Tenn. Comp. R. Regs. § 1500-01-02-.05(2). The employer has the burden of establishing that religion, national origin, or sex is a BFOQ. +Tenn. Comp. R. Regs. § 1500-01-02-.05(4).
The regulations define a BFOQ as "only those vocational qualifications that are reasonably necessary to the normal operation of the particular business." The THRC will interpret the BFOQ exception so that individuals will be considered for employment on the basis of their individual capacities, and not on the basis of any characteristic(s) generally attributable to their group. +Tenn. Comp. R. Regs. § 1500-01-02-.05(4).
The THRC will not apply the BFOQ exception when it is based on "assumptions of the comparative general employment characteristics of persons of a particular religion, national origin, or sex, such as their turnover rate; stereotypical characteristics of the aforementioned classes, such as their mechanical ability or aggressiveness; customer, client, coworker, or employer preference; historical usage, tradition, or custom; or the necessity of providing separate facilities of a personal nature, such as rest rooms or dressing rooms." +Tenn. Comp. R. Regs. § 1500-01-02-.05(5).
Administrative Process and Judicial Proceedings
The Tennessee Human Rights Commission (THRC) receives, investigates and handles claims of harassment. Employees may file a complaint with the Human Rights Commission within 180 days of the discriminatory action, and/or employees may file a civil action within one year of the discriminatory action. +Tenn. Code Ann. §4-21-302; +Tenn. Code Ann. §4-21-312. If an aggrieved person initiates the administrative process through the THRC and pursues it to an administrative conclusion that no violation occurred, the only way to pursue a civil action is through an administrative appeal. Otherwise, the aggrieved person may elect to file a civil claim. +Tenn. Code Ann. §4-21-302; +Tenn. Code Ann. §4-21-311; See Puckett v. Tenn. Eastman Co., +889 F2d 1481 (6th Cir. 1989).
An employee is not permitted to maintain claims filed under the THRA, the TDA and the Tennessee Public Protection Act (TPPA) both at the state and federal levels under the same set of facts. The state court shall dismiss any state court action that is a duplicate of federal law claims.
Claims brought under the THRA may be heard by a jury. Available remedies include reinstatement, back pay, actual damages, injunctive relief, costs and reasonable attorney fees. Punitive damages are not available under the THRA. Tenn. Cod Ann. § 4-21-311; +Tenn. Code Ann. § 4-21-401; See Thomas v. Allen-Stone Boxes, +925 F.Supp. 1316 (W.D. Tenn. 1995).
The THRA, the TDA and the Tennessee Public Protection Act (TPPA) have been amended to cap the amount of non-monetary damages (e.g., as a result of emotional pain and suffering, mental anguish or loss of enjoyment of life) that an employee may seek under those laws. The caps, which range from $25,000 to $300,000, vary depending on the number of employees that an employer employs. The caps are as follows: 8 - 14 employees (capped at $25,000); 15 - 100 employees (capped at $50,000); 101 - 200 employees (capped at $100,000); 201 - 500 employees (capped at $200,000); 501+ employees (capped at $300,000). Back pay, interest, front pay and equitable relief are not included in the caps. Punitive damages are also not available under state law. The amount of compensatory damages due to a prevailing employee in discrimination, disability and retaliation cases is limited to $25,000 if the employer employs 8 employees or less.
Discrimination Based on Off Duty Activities
Tennessee law prohibits discharging an employee for engaging in the use of an agricultural product (tobacco) not regulated by the alcohol beverage commission that is not otherwise proscribed by law, if the employee complies with all applicable employer policies regarding its use during working time or when the employee is not working. Employees who are terminated in violation of this prohibition have a civil cause of action for retaliatory discharge. +Tenn. Code Ann. §50-1-304
Free Association Protection
Tennessee law prohibits employers from denying employment to, or excluding from employment, any person based on the person's affiliation with, or refusal to affiliate with, any labor union or employee organization of any kind. +Tenn. Code Ann. § 50-1-201.
Employers are prohibited from terminating or refusing to hire an individual because of membership in the state National Guard. Violation of this provision is a class E felony. +Tenn. Code Ann. § 58-1-604).
Tennessee allows employers to grant a preference in hiring and promotion to veterans, disabled veterans' spouses, and unremarried surviving spouses of deceased veterans. +2017 Bill Text TN H.B. 165.See Recruiting: Tennessee. An employer should be careful in applying any veterans preference policy that the policy does not have an adverse impact on any other protected class.
An employer is prohibited from discriminating between employees in the same establishment based on sex by paying any employee salary or wages rates less than the rates the employer pays to any employee of the opposite sex for comparable work on jobs requiring comparable skill, effort and responsibility, and that are performed under similar working conditions. The law does not prohibit a wage differential if it is based on a seniority system, a merit system, a system that measures earnings by quality or quantity of production, or any other reasonable differential that is based on a factor other than sex. An employer in violation of the law cannot reduce the wage rate of any employee in order to comply. +Tenn. Code Ann. § 50-2-202.
Further, it is a discriminatory practice under the THRA for an employer to discriminate against an individual with respect to compensation because of such individual's sex, race, creed, color, religion, age or national origin. +Tenn. Code Ann. § 4-21-401(a)(1).
Lactation/Breastfeeding Protections and Accommodations
A mother is permitted to breastfeed in any location, public or private, that the mother is authorized to be, and local governments may not criminalize or restrict breastfeeding. +Tenn. Code Ann. § 68-58-101.
Under Tennessee law, an employer is required to provide a reasonable unpaid break time each day to an employee who needs to express breast milk for that employee's infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. An employer shall not be required to provide break time if doing so would unduly disrupt the employer's operations. An employer shall make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where the employee can express breast milk in privacy. An employer shall not be penalized if it makes reasonable efforts to comply. This law applies to an employer with one or more employees (including the state and political subdivisions). +Tenn. Code Ann. § 50-1-305.
Tennessee passed a law prohibiting local governments from enacting antidiscrimination laws that vary from the state discrimination laws. +Tenn. Code Ann. § 7-51-1802. See Municipal Preemption Laws by State.
The City of Knoxville has a Nondiscrimination clause for city contracts that prohibits employment discrimination by the City on the basis of race, ethnic origin, color, national origin, gender, gender identity, sexual orientation, age (40 and over), religion, creed, or disability. Knoxville Code of Ordinances 15-57. All contractors with the City of Knoxville where City funds are expended for the providing of any service are required to include a clause prohibiting discrimination by the contractor on the basis of race, color, religion or national origin, and that they will take affirmative action to ensure applicants and employees are treated without regard to their race, color, religion or national origin. Knoxville Code of Ordinance 15-26.
Nashville /Davidson County Discrimination
Employers in the metropolitan area of Nashville with twelve or more employees are subject to the Nashville and Davidson County Antidiscrimination for Larger Employers law. The law prohibits employers from discriminating on the basis of race, color, religion, national origin, disability or sex. Metro Gov. of Nashville and Davidson County Code of Ordinances 11.20.020 and 11.20.030. A Human Relations Commission has been established to accept the filing of complaints, conduct investigations, pursue conciliation, hold hearings and enforce by a civil action if unresolved. Metro Gov. of Nashville and Davidson County Code of Ordinances 11.20.100 - 11.20.120. The Ordinance also prohibits the Metropolitan Government from employment discrimination on the basis of race, religion, creed, gender, gender identity, sexual orientation, national origin, color, age and/or disability. Metro Gov. of Nashville and Davidson County Code of Ordinances 11.20.130. The Metropolitan Government requires employers of fifteen or more employees who contract with the Metropolitan Government for supplies or services be prohibited from discriminating in employment on the basis of race, creed, color, national origin, age, sex, gender identity, sexual orientation and/or disability. Metro Gov. of Nashville and Davidson County Code of Ordinances 4.28.10.
Shelby County Discrimination
Shelby County, which includes Memphis and surrounding areas, has an Antidiscrimination in employment law for employers with fifteen or more employees. The law requires that for contractors with fifteen or more employees to be eligible to bid on contracts for goods and services with Shelby County they must have a minority workforce within 90% of the percentage of minorities in the geographical area as established by the Standard Metropolitan Statistical Area (SMSA) compiled by the Office of Management and Budget of the United States. Contractors within 80% of compliance with the minority SMSA shall be eligible upon submission of a satisfactory affirmative action plan. A contractor within 50% compliance with the minority SMSA must show extenuating circumstances and a satisfactory affirmative action plan. Shelby County Resolutions 12 and 17.
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