Tag Archives: failure to hire

Tennessee Supreme Court Refuses To Recognize A Claim For Retaliatory Failure to Hire

In Yardley v. Hospital Housekeeping Systems, LLC the Tennessee Supreme Court declined to recognize a cause of action under the Tennessee Workers’ Compensation Act for retaliatory failure to hire.  Beginning in 1998 Ms. Yardley had worked as a housekeeping aide for a hospital in Lebanon.  In 2010 Ms. Yardley was injured on the job and began receiving workers’ compensation benefits.  In January 2012 the hospital entered into a contract with Hospital Housekeeping Systems (“HHS”) whereby HHS would provide housekeeping services for the hospital.  Ms. Yardley applied for employment with HHS and was not hired.

In an email an HHS Vice-President stated in pertinent part that “Ms. Yardley had been out on workers’ comp with the hospital . . . that her shoulder was hurting her again, and that bringing her onboard would seem to be a workers’ comp claim waiting to happen.”  After not being hired Ms. Yardley filed suit claiming that the failure to hire her stated a claim under the Tennessee Workers’ Compensation Act.

In declining to recognize a cause of action for retaliatory failure to hire the Supreme Court relied on the plain language of the Workers’ Compensation Act.  Based on the plain language of the Act, Ms. Yardley was not an employee of HHS and HHS was not her employer.  The Supreme Court also noted that the employment at will doctrine is a bedrock principle of Tennessee Employment Law.  Thus, the Tennessee Supreme Court declined to recognize another exception to the employment at will doctrine.

The biggest take away from the Yardley case for employers is, even though Ms. Yardley cannot state a claim for retaliatory failure to hire under the Tennessee Workers’ Compensation Act, she may very well be able to state a claim for disability discrimination under the American’s With Disabilities Act (“ADA”) and the Tennessee Human Rights Act (“THRA”).  Ms. Yardley may be able to prove that she was not hired because of an actual disability or because HHS regarded her as being disabled.  If she is successful under either theory she would be able to prevail under both the ADA and THRA.

To avoid failure to hire claims under the ADA and THRA do not base hiring decisions on an applicant’s medical condition or disability unless the condition prevents the applicant from performing the essentials functions of the job with or without reasonable accommodation.  Additionally, do not ask questions about an applicant’s medical history unless you have extended the applicant a conditional offer of employment, the same questions are asked of all applicants for that position who have received a conditional offer of employment and the questions are narrowly tailored to the essential functions of the job in question.

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