When Not Hiring Someone Results in a Lawsuit

Tennessee, like many states, recognize employment at will – either the employee or the employer may terminate the employment with or without cause, so long as the firing doesn't fall within a public policy or statutory exception. One such exception prevents an employer from firing an employee simply because the employee filed a workers' compensation claim.
What happens when a prospective employer refuses to hire an applicant for the stated reason that the applicant filed a workers' compensation claim with her former employer. A hospital cleaning company in Lebanon, Tennessee recently found out when Kighwaunda Yardley sued it for failing to hire her. Ms. Yardley acknowledged that Tennessee law didn't currently permit such a suit, but argued instead that the Court should create such a law based on public policy grounds. She argued that the absence of this private cause of action would have a chilling effect on employees who were afraid of filing workers' compensation claims.
The Tennessee Supreme Court disagreed with Ms. Yardley, holding that "a job applicant does not have a cause of action under the Tennessee Workers’ Compensation Act against a prospective employer for failure to hire if the prospective employer refused to hire the job applicant because that applicant had filed, or is likely to file, a workers’ compensation claim against a previous employer." In other words, the Court told Ms. Yardley that she couldn’t sue for not being hired.
Surprisingly, the Court noted that several states including Florida, Illinois, Louisiana, Maine, and Massachusetts have statutory provisions expressly allowing claims for "retaliatory failure to hire." Maybe had Ms. Yardley not been hired in one of these other states she would have a claim. But, not so in Tennessee.
Employment issues such as hiring and firing implicate numerous state and federal laws and are often ripe with litigation. Employers need to guard against such litigation by making sure that they understand their obligations, while employees who have been wrongfully terminated may find that their rights were in fact violated. But, not so for Ms. Yardley.