Effective July 1, the Tennessee Human Rights Commission (commission) was dissolved with very little fanfare. That same day, the newly created Civil Rights Enforcement Division (CRED) of the Tennessee Attorney General’s office assumed responsibility for investigating, among other things, employment discrimination claims brought under the Tennessee Human Rights Act and the Tennessee Disability Act. What does this governmental agency change mean for employment law practitioners?

First, something should be said about the commission’s demise. According to several state legislators, the commission had long been under scrutiny for alleged ineffective administration and slow claims processing. During debate on the Senate floor on April 21, the prime sponsor of the bill to dismantle the commission, Sen. John Stevens of Huntingdon (R), explained that the commission’s chronic backlog and slow claims processing was the genesis for the bill.[1] According to Stevens, “The people that are alleging that their civil rights have been violated deserve a timely and thorough investigation and a timely response from the State of Tennessee. The Human Rights Commission has not been delivering on that.”[2] During the same floor debate, Sen. Kerry Roberts of Springfield (R), further explained the reasons for ending the decades-old commission. Roberts described the commission as “an entity that has steadfastly been enormously ineffective” because “claims [] have languished without action.”[3] Roberts stated, “This is about ineffective administration.”[4] While the move to abolish the commission had its detractors, the bill easily passed the Republican controlled General Assembly on April 21 and was signed into law by Gov. Bill Lee on May 12. The new law is codified as Public Chapter No. 471.

One recurrent issue of concern voiced by opponents to the bill is whether the attorney general’s office would have a conflict of interest handling employment claims against the state. The bill sponsors countered this concern with citation to the case of State ex rel. Commissioner of Transportation v. Medicine Bird Black Bear White Eagle.[5] In that case, an intra-governmental legal dispute arose between the Tennessee Department of Transportation (DOT) and the Tennessee Commission of Indian Affairs over the use of land containing a Native American burial ground. The trial court disqualified the attorney general’s office from simultaneously representing both agencies in the lawsuit based upon an ethical conflict of interest, reasoning that the attorney general potentially owed a greater duty of loyalty to the DOT than to the commission. The Tennessee Court of Appeals disagreed. “Unlike the conflict-of-interest rules governing the conduct of lawyers representing private clients, the Attorney General is not necessarily prohibited from representing governmental clients whose interests may be adverse to each other. The majority rule is that the Attorney General, through his or her assistants, may represent adverse state agencies in intra-governmental disputes.”[6]

To better understand the new structure and procedures of CRED, the author interviewed Chief Deputy Attorney General Lacey Mase. According to Mase, the newly appointed director of CRED is Steven Griffin, who formerly served in the attorney general’s office as senior counsel for strategic litigation. CRED’s claim handling procedures are different than those of the commission. According to Mase, CRED’s procedures will closely follow those of the Attorney General’s Consumer Protection Division.

CRED’s website contains an online complaint portal for initiating a complaint.[7] A complaint can also be submitted via U.S. Mail or by email to CRED. A complaint must be filed with CRED within 180 days of the challenged adverse employment action.[8] If more than 180 days have elapsed, or if the employee chooses not to file a complaint with CRED, an employee may file a lawsuit in either circuit or chancery court within one year of the challenged adverse employment action.[9]

Currently, CRED’s website contains scant information about claim-processing procedures. Because CRED is new, administrative plans are still being ironed out. With time, there likely will be more information posted to the website. According to Mase, once a complaint is filed, an intake specialist will review the complaint for jurisdiction purposes. If there are no jurisdictional defects, CRED will send a copy of the complaint and a letter to the employer (sometimes referred to as respondent) requesting a response. CRED will treat all information submitted to it by both parties as confidential. Unlike the EEOC, CRED does not provide an online case file portal. Party submissions (employer responses or employee rebuttals) can be made via email or a secure file transport protocol (SFTP) to a designated CRED staff member. Upon reviewing the employer’s response, CRED has several options. First, it may choose to close the claim. If it closes the claim, CRED will send a notice to both parties advising them of its decision and the employee’s right to pursue a direct court action. Second, CRED could suggest mediation or perhaps conciliation, depending on how it views the merits of the claim. Third, CRED could initiate formal requests for information, including requests for documents and testimony under oath. After CRED has gathered more detailed information through its investigative process, CRED again would have options. It could close the claim. It could suggest mediation or conciliation.  As a last resort, assuming mediation or conciliation has failed or are not viable options, CRED can initiate a lawsuit against the employer in chancery or circuit court.

Unlike the commission procedures, the CRED process appears more fluid and flexible. CRED may or may not request a rebuttal from the employee. It may or may not choose to initiate a formal investigation or suggest mediation. CRED will not conduct hearings or adjudicate the merits of claims as the commission formerly had the authority to do. The new amendments to the THRA do not vest CRED with authority to conduct hearings.[10] Mase explained that one important goal for CRED is to provide parties with a timely response. Given the one-year limitation period for an employee’s private cause of action, CRED is cognizant of the dilemma that an employee could face if CRED’s decision to pass on a claim is made beyond the one-year limitations period. To that end, CRED will attempt to address claims as quickly as possible. However, as Mase pointed out, each claim will be handled on a case-by-case basis, and timelines are not guaranteed.

One final important note should be made. In late June, CRED entered into a worksharing agreement with the EEOC. The worksharing agreement ensures claimants in Tennessee continue to have 300 days to file a charge of discrimination with the EEOC. It also allows CRED to dual-file claims with the EEOC on behalf of Tennessee employees and to transfer complaints to the EEOC for further investigation, as needed.

Doug Hamill is a member of Mikel & Hamill PLLC in Chattanooga, and former chair of the TBA Labor & Employment Section. He primarily represents individuals in employment law matters. He can be reached at dhamill@mhemploymentlaw.com.