Sexual Harassment and Sexually Hostile Work Environment Claims in Tennessee – General Overview

Sexual Harassment and Sexually Hostile Work Environment claims are both recognized in Tennessee under state law and federal Law (pursuant to Title VII).  These are very significant claims often involving the harassment of a female by a male supervisor or co-worker.  The standards for an employer’s liability are different under each of those scenarios (this will be discussed in a subsequent blog post on this topic).  It is important to note that Tennessee courts often look to federal law for guidance on interpretation of Tennessee’s own discrimination statutes, because they are so similar.

A sexual harassment “quid pro quo” claim in Tennessee is established using the following elements to support the cause of action:

(1) that the employee was a member of a protected class; (2) that the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that the employee's submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's demands resulted in a tangible job detriment; and (5) the existence of respondeat superior liability.

Sanders v. Lanier, 968 S.W.2d 787, 789 (Tenn. 1998).  This type of claim mainly focuses on unwanted sexual advances or requests for sexual favors.  Believe it or not, these situations are much more common than you would think.  Federal law has similar protections against this type of action in the workplace.

Another type of claim under Tennessee law is a sexually hostile work environment claim.  This is based on sexual harassment of an employee based on their sex.  Often, this could involve crude sexual jokes, sexual comments, inappropriate touching or grabbing and other similar conduct – most often directed at women.  Tennessee courts have provided the following as the elements required for this type of case in Tennessee:

To prevail on a hostile work environment claim in a sexual harassment case, an employee must assert and prove that (1)...

2017 Tennessee Legislature Adds Requirement that Terms in Tennessee Statutes are Given Their “Natural and Ordinary” Meaning

The Tennessee Legislature passed a new law in 2017 that governs appropriate statutory construction.  This is an interesting change that has application to all of the words in the Tennessee Code that do not have a definition provided in the code.  This new law was passed as Public Chapter No. 302 and signed into law by Governor Bill Haslam on May 5, 2017, and it took effect immediately.  It is codified now in T.C.A. § 1-3-105.  This statute is not often cited to but is important to know about because it provides definitions for certain words provided for in the Tennessee Code (such as “property”, “highway”, “real property”, “age of majority”, “record” and other terms).

This new law provides as follows:

(b) As used in this code, undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest.

It appears to me that this new statute is designed to prevent judicial overreach in redefining terms outside of their normal meaning.   Sometimes in cases, key terms in statutes do not have a definition within the Tennessee Code and the lawyers and the Court must interpret the term.  This new law provides guiding principles for statutory construction that are intended to prevent odd or unique interpretation of key terms in statutes.  The only way to interpret a word beyond the “natural and ordinary meaning” is if the “contrary intention is clearly manifest”.  That is a very high standard and should not be taken lightly.  I interpret that standard to be when the statute actually misuses a word and a contrary interpretation is compelled by the clear intent of the legislation.  This should rarely be applied.

Some specific terms that are defined in this statute (T.C.A. § 1-3-105) that may be helpful to review and remember include the following:

(1) “Age of majority” means eighteen (18) years of age or older; except that when purchasing, consuming or possessing alcoholic beverages, wine or beer as those terms are defined in titl...

Piercing the Corporate Veil in Tennessee – When Can a Judgment Against a Corporation be the Personal Responsibility of the Shareholders?

The Tennessee Court of Appeals recently decided a case (F&M Marketing Services, Inc. v. Christenberry Trucking and Farm, Inc., E2016-00205-COA-R3-CV, 2017 WL 417223_(Tenn. Ct. App. 2017)) involving a request to pierce the corporate veil of a Defendant after the Plaintiff got a substantial judgment against that Defendant for breach of contract.  The total judgment in this case was $375,524.29.  After the initial judgment was entered, the Plaintiff learned that the Defendant had no assets to satisfy the judgment.  As a result, the Plaintiff petitioned the trial to hold the primary shareholder of the Defendant personally liable for the judgment against the Defendant corporation.  The Tennessee Court of Appeals did a good job discussing the circumstances when an individual shareholder can be found personally responsible for a judgment against a corporation in Tennessee. 

The Court noted that the most important case outlining when it is appropriate to pierce the corporate veil in Tennessee is the FDIC v. Allen, 584 F. Supp. 386 (E.D. Tenn. 1984) decision.  The Court noted that numerous Tennessee Court of Appeals and the Tennessee Supreme Court have nearly uniformly considered the “Allen factors” that were outlined in this case many years ago.  The factors to be considered when determining whether to allow a judgment to be against individual shareholders and simply disregarding the corporate veil include the following:

Factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: (1) whether there was a failure to collect paid in capital; (2) whether the corporation was grossly undercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities.

F&M Marketing at 3 (quoting Rogers v. Louisville Land Company, 367 S....

Tennessee Court of Appeals Finds Planting Trees that Block View of Golf Course is Not a Nuisance

The Tennessee Court of Appeals recently decided whether it was considered a nuisance to block a neighbor’s view of a golf course with trees.  The case of Stibler v. The Country Club, Inc., No. E2014-00743-COA-R3-CV, 2015 WL 1093638 (Tenn. Ct. App. 2015) is unique and has interesting facts.  In this situation the plaintiff filed suit against a country club that ran a golf course because the country club planted trees that blocked the plaintiff’s (who owned a neighboring property) view of the golf course.  The court first considered whether the planting of trees violated the covenants and restrictions for the subdivision.  There was nothing in the actual covenants and restrictions that were violated by the planting of these trees.  As a result, the court next turned to the issue of to whether blocking of a view to a golf course by planting trees is considered nuisance under Tennessee law.

There is no question that trees can constitute a nuisance in certain circumstances (See prior post on this issue).  In fact, the Tennessee Supreme Court has provided guidance specifically regarding trees and nuisance stating that “encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.”  Stibler at 4 (quoting Lane v. W. J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn. 2002)). 

In the Stibler case at issue, it was undisputed that the country club planted trees on its own property and that the trees did not encroach on plaintiff’s property in any way.  Further, these trees did not cause any physical damage to the plaintiff’s property.  The sole basis for plaintiff’s claim is that there was economic damage caused to the plaintiff’s property resulting from the loss of a golf course view.  The Tennessee Court of Appeals found that losing a view of an adjacent golf course on a country club’s property due to the planting of trees is “simply insufficient to give rise to a claim for nuisance.” Stibler at 4

In Tennessee Can a Loss of Consortium Claim be Brought by an Individual Who is Not Legally Married to the Injured Person?

A question recently came up in my practice concerning whether a loss of consortium claim could be brought by a fiancée, boyfriend or girlfriend of an individual who was injured in Tennessee.  The simple answer to this question is that it appears a loss of consortium claim is not available in Tennessee to unmarried individuals.  However, the case law is not quite definitive as it should be, but the statute provides definitive support for this conclusion.

The United States District Court for the Middle District of Tennessee in Becker v. Judd and Walmart Transportation, LLC, 646 F.Supp.2nd 923 (M.D. Tenn. 2009) discussed this issue.  This Court found that under Tennessee law in order for a loss of consortium claim to exist, the plaintiffs must be legally married.  The court stated as follows:

While there is not a wealth of Tennessee law on this topic, the limited statutory and case law available indicates that the Beckers must be married in order to advance their claim for loss of consortium. For instance, the defendants cite two cases in which the Tennessee Court of Appeals noted, without objection, that the trial court had dismissed a loss of consortium claim because the couple asserting the claim was not married at the relevant time.

One of the two Tennessee cited cases was Littlejohn v. Board of Public Utilities of Paris, 2002 WL 54404 (Tenn. Ct. App. 2002).  The court states that this Littlejohn case is a “failed loss of consortium claim advanced by boyfriend and girlfriend”.  However, when you look at the actual Tennessee Court of Appeals’ decision, they do not address this actual issue at all.  The Tennessee Court of Appeals case simply states that the Trial Court dismissed the case because the individual seeking loss of consortium was not married to the injured party.  The Court of Appeals did not actually decide or substantively discuss this issue. 

The second Tennessee case cited in Becker is Eisenhardt v. Ramsey, 1995 WL 358062 (Tenn. Ct. App. 1995).  This case is cited by t...

Book Review – Tennessee Law of Civil Trial by Attorney John Day

Many of you who practice law in Tennessee have read and used books by attorney John Day as a resource in your law practice.  These books include Day on Torts: Leading Cases in Tennessee Tort Law and Tennessee Law of Comparative Fault.  I have used both of these books on numerous occasions.  The good news is John Day now has a new book called, “Tennessee Law of Civil Trial.”  This can be added to your list of helpful Tennessee specific law books written by attorney John Day.  He sent me a copy and requested I write a review and it has been a good experience.

The main purpose of this book is to clearly outline the “Law of Civil Trial” in Tennessee in a concise helpful way.  John Day points out, as many of us have come to realize, that there are significantly less trials in Tennessee than there were in the past (I have blogged about this issue previously).  As a result, less and less attorneys have significant civil trial experience and therefore he felt a resource would be helpful for those attorneys who still occasionally go to trial but may not have the trial experience a lot of attorneys had in the past.  I think this is the primary value of this book.  The secondary value is to provide a helpful reference on specific topics for more experienced attorneys who have tried many cases.  This group of attorneys can still benefit from this book because it provides a refresher course on certain topics.  I will be placing this book in my firm’s library because it is a resource that can be taken to trial or reviewed prior to trial to remind you of certain trial concepts that we may not use on a day-to-day basis. 

This book discusses many different areas and I think it is helpful for you to know the topics so you can better understand the scope of this book.  This book provides chapters on the following topics:

            1.          Scheduling orders

            2.          Final Pretrial Conferences

            3.          Motions in

Tennessee Legislature Adds New Cause of Action to Fight Individuals who Illegitimately Threaten Patent Litigation

Tennessee recently established new statutory protections for individuals and companies that are illegitimately threatened with patent infringement claims.  This has been a growing problem across America including in Tennessee.  The 2014 Tennessee Legislature passed Public Chapter No. 879 which created a new series of statutes found in T.C.A. § 29-40-101 – § 29-40-104 (effective on May 18, 2014) in order to try to combat this problem.  The stated purpose of these new statutes is to prevent small and medium sized companies from alleged patent infringement claims from third parties that are unsubstantiated and meritless.  Patent litigation can be extremely expensive and the Tennessee Legislature was concerned about the abuse of patent litigation in Tennessee.  As a result, this new statute provides a new cause of action with enhanced damages to use against those who improperly threaten unsubstantiated patent litigation.  This cause of action allows for the recovery of attorney’s fees, costs, actual damages and punitive damages in an amount equal to three times the actual damages. 

New Key Statutory Language (T.C.A. § 29-40-102(a)):

The main provision in the new statute is found in T.C.A. § 29-40-102(a).  This part of the statute identifies the key acts that violate the statute.  It is hard to find this statutory language online currently so I will post this entire section for your convenience (although you can see it officially in the link to Public Chapter No. 879).  This portion of the statute provides as follows:

(a) It is a violation of this chapter for a person, in connection with the assertion of a United States patent, to send, or cause any person to send, any written or electronic communication that states that the intended recipient or any...

2014 Tennessee Legislature Makes Judgments Permanent if Injury or Death Caused by Criminal Conduct

Analysis:  The Tennessee Legislature made an interesting change to the typical rule in Tennessee that judgments are only good for ten years unless renewed (See T.C.A. § 28-3-110 and Tennessee Rule of Civil Procedure 69.04).  The Tennessee Legislature in the 2014 Tennessee legislative session passed Public Chapter No. 596 which was signed into law by Governor Bill Haslam on March 28, 2014.  This statute essentially allows a party to make a judgment permanent (as opposed to the current law where it expires after 10 years unless renewed) if the injury or death was caused by criminal conduct.  This act applies to any civil judgments that go into effect after July 1, 2014.  Additionally, there is actually a way for this act to apply to judgments entered before July 1, 2014, if a specific procedure is followed.

The new T.C.A. § 28-3-110(B)(1) provides as follows:

(b)(1) Notwithstanding the provisions of subsection (a), there is no time within which a judgment or decree of a court of record entered on or after July 1, 2014, must be acted upon in the following circumstances:

(A) The judgment is for the injury or death of a person that resulted from the judgment debtor's criminal conduct; and

(B) The judgment debtor is convicted of a crim...

When is a National Organization Responsible for the Sexual Abuse of a Minor that Occurs at a Local Chapter in Tennessee?

Analysis:  A very interesting Tennessee Court of Appeals decision was recently decided on an issue that often comes up in sexual abuse cases.  The question is whether a national organization or entity can be held responsible for actions that occurred by the local organization or their members or volunteers.  The Tennessee Court of Appeals decision of Ms. B., individually and on behalf of minor child, John Doe, “N” v. Boys and Girls Club of Middle Tennessee, et al, No. M-2013-00812-COA-R3-CV, 2014 WL 890892 (Tenn. Ct. App. 2014) involved a lawsuit that was filed for the alleged sexual abuse of a minor child by a volunteer associated with the local Boys and Girls Club of Middle Tennessee.  The national entity, Boys and Girls Club of America, was also sued in this case.  The trial court granted the national entity’s motion for summary judgment and that ruling was appealed to the Tennessee Court of Appeals. 

The question before the Tennessee Court of Appeals was whether the national Boys and Girls Club of America had a legal responsibility to the minor child in this context.  The court noted that it is well settled in Tennessee that “there is no duty to protect others against risks of harm by third parties.”  Ms. B. at 4.  However, the court went on to state that, “an exception arises, however, when a special relationship exists between the defendant and either the person at risk or the actor who is the source of the risk or danger.”  Ms. B. at 4.  Further, “[i]f an individual stands in a special relationship to another individual who is the source of the danger or who is foreseeably at risk from the danger, then the individual assumes an affirmative duty to exercise reasonable care to either control the danger or protect the vulnerable.”  Ms. B. at 4. 

The Tennessee Court of Appeals in this case framed the specific issue in dispute as follows:

The question of whether a duty should be imposed on BBBSA to take reasonable measures to prevent sexual abuse of children participating in programs offered b...

Mental Health Law – New requirements for mental health practitioners passed in the 2013 Tennessee legislative session.

Analysis:  The 2013 Tennessee legislative session brought about an important new addition to the Tennessee Mental Health statutes found in Title 33.  Specifically, Public Chapter No. 300 which was signed into law by Tennessee Governor Bill Haslam on April 29, 2013, added T.C.A. § 33-3-210.  This statute went into effect on July 1, 2013.  It provides specific reporting requirements for mental health professionals to report “immediately” to law enforcement when their patient threatens to harm an identifiable victim under certain circumstances.  This statute provides as follows:

(a) If a service recipient has communicated to a qualified mental health professional or behavior analyst an actual threat of serious bodily harm or death against a reasonably identifiable victim or victims, the qualified mental health professional or behavior analyst, using the reasonable skill, knowledge, and care ordinarily possessed and exercised by the professional's specialty under similar circumstances, who has determined or reasonably should have determined that the service recipient has the apparent ability to commit such an act and is likely to carry out the threat unless prevented from doing so, shall immediately report the service recipient to local law enforcement, who shall take appropriate action based upon the information reported.

(b) If a mental health professional or behavior analyst is required to report pursuant to subsection (a), the professional or analyst shall report the following information:

(1) Complete name and all aliases of the service recipient;

(2) Name of the mental health professional or behavior analyst and name of private or state hospital or treatment resource from which the individual may be receiving services; and

(3) Date of birth of the service recipient.