Tuesday, September 21, 2010

How "Hannan" Continues Its Role as a Gift That Keeps On Giving

The Hannan case from 2008 changed the way our state courts in Tennessee approach summary judgment. In essence, Hannan made it much more difficult, for example, for employers to get summary judgment in employment discrimination cases based upon state law.

A recent Tennessee Supreme Court decision all but eliminated the ability to have a case summarily dismissed (that is, without a trial) when the claim is based upon common law retaliatory discharge. In Gossett v. Tractor Supply Company, Inc., the Court held that an employer must offer evidence that disproves the employee's claim that the discharge was motivated by retaliation. This is a swing in methodology from the Court's previous use of the U.S. Supreme Court burden-shifting posture: if an employee demonstrates a reasonable jury could conclude retaliation occurred, the employer has an opportunity to refute that presumption by demonstrating a legitimate business reason existed for the discharge. Notable is that in the U.S. Supreme Court body of law, employers can have "mixed motives" in discharging employees without being liable for a violation of the law. Cases brought under state law in Tennessee are now no longer eligible for the mixed motive consideration.

In the end, it doesn't change the cautions we extend to employers concerning retaliation cases. We warned about the difficulty in getting rid of them once they appeared in court. Now we have the court language to back it up.

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