Richard Bean, the 85-year-old former superintendent of a Knox County juvenile detention center named for him, has filed a federal lawsuit seeking $5 million from Knox County, County Mayor Glenn Jacobs and Juvenile Court Judge Tim Irwin. Bean alleges his constitutional rights were violated through forced resignation, age discrimination and reputational damage from public statements made by county officials, Knox News reports. The lawsuit claims Irwin and Jacobs conspired against Bean after he fired two employees — a nurse and an IT specialist — who had exposed medical malfeasance at the facility, and that the officials pressured him to rehire those workers before he resigned three days later. Bean says the ordeal cost him lost wages and earning capacity and caused emotional pain and suffering.

In a split decision, based upon an issue of first impression, the 6th Circuit recently held that no retaliation claim exists under Section 504 of the Rehabilitation Act in the case of Smith v. Michigan Department of Corrections.[1] The holding is somewhat surprising as courts nationwide have long assumed without questioning that the cause of action exists.

The issue of whether a retaliation claim exists presented itself in an unusual manner. Smith sued his former employer, Michigan Department of Corrections and the State of Michigan (collectively MDOC), under Section 504 of the Rehabilitation Act[2] for failing to provide him a reasonable accommodation for his disability and retaliating against him for making an accommodation request. The district court granted summary judgment to MDOC on the failure-to-accommodate claim, but the retaliation claim was tried for 10 days to a jury, which found in favor of MDOC. Smith appealed several trial issues, including whether the jury instruction erroneously required Smith to prove his disability was the “sole cause” of MDOC’s adverse action against him — a standard drawn from Section 504(a) of the Rehabilitation Act. However, prior to oral argument, the 6th Circuit, sua sponte, raised the issue of whether a retaliation claim even exists under the act — an issue the parties and the district court assumed was not even in dispute.

Judge Bush, joined by Judge Batchelder, wrote the majority opinion. The majority first noted that the Supreme Court has never held that any provision of the act creates a private right of action for retaliation.[3] Nor is there binding precedent from the 6th Circuit.[4] The majority recognized that “[t]he longstanding practice of this circuit has been to proceed under the assumption that a cause of action for retaliation exists under § 504.”[5] However, much like decisions from other circuit courts, the majority viewed caselaw as “widespread but informal acceptance of retaliation claims lacking meaningful statutory analysis.”[6] Therefore, the majority turned to statutory analysis.

First, the majority noted the presumption against implied causes of action[7] when the statute in question was enacted much like a contract between the federal government and state governments.[8] Any conditions the federal government attaches to the receipt of federal funds must be stated unambiguously. That is, recipients of federal funds must understand that they may be potentially accepting exposure to private lawsuits.[9] Because Section 504(a) does not explicitly mention retaliation, the majority “decline[d] to read retaliation into a provision that says nothing about it.”[10]

Second, the majority focused upon the language of Section 504(d) of the act. Smith argued that the cause of action for retaliation must arise from Section 504(d)’s express incorporation of “standards” from the ADA, including the ADA’s anti-retaliation provision, 42 U.S.C. § 12203.[11] The majority again noted that Section 504(d) contained no express provision for a retaliation claim.[12] As for the term “standards,” the majority found that “standards” are not synonymous with “cause of action.”[13] “Standards guide how claims are adjudicated, not whether a cause of action exists in the first place.”[14] Smith also argued that the Supreme Court case of Jackson v. Birmingham Board of Education,[15] holding that Title IX’s general prohibition against discrimination on the basis of sex was broad enough to include retaliation even in the absence of an express provision, was persuasive authority to find a retaliation cause of action under Section 504.[16] The majority, however, disagreed. It noted that, unlike Title IX, the Rehabilitation Act does not carry with it a similar history of expansive judicial interpretation, nor does the act contain general language like Title IX’s prohibition on discrimination “on the basis of sex.”[17]

The majority summarized its holding as follows. 

We read § 504(d) to incorporate from the ADA only adjudicatory standards — and not to create new causes of action — because that interpretation aligns with both the ordinary legal meaning of ‘standards,’ and the structure of the Rehabilitation Act and related acts. Subsection (d) functions as a technical cross-reference provision; it is structurally and linguistically ill-suited to serve as the source of an implied right to sue.[18]

On the issue of whether a retaliation claim exists under the act, Judge Bloomekatz wrote a vigorous dissent. First, the dissent pointed to long-standing caselaw within the 6th Circuit and in other circuits which recognized a cause of action for retaliation under the act.[19] Second, from a policy standpoint, the dissent noted that “[p]rotection against retaliation is essential to effective enforcement of anti-discrimination statutes because those regimes depend on individuals coming forward to report violations.”[20] Third, the dissent agreed with Smith’s argument that, by incorporating the ADA’s anti-retaliation provision, Section 504(d) is not silent as to retaliation; it therefore prohibits retaliation and provides a cause of action for retaliation in employment cases.[21] The dissent explained that the majority’s holding — that no right of action for retaliation exists — would render meaningless Section 504(d)’s express incorporation of the ADA’s anti-retaliation provision.[22] According to the dissent, when the Rehabilitation Act was amended by adding cross-references to the ADA within Section 504(d), such cross references should not be treated as surplusage. Rather, courts should interpret the ADA cross references (particularly those provisions that do not relate to causation standards) to “give effect, if possible, to every clause and word of a statute.”[23] In sum, Section 504(d)’s incorporation of the ADA’s anti-retaliation provision is itself an express intent of Congress to allow a cause of action for retaliation under Section 504 of the act, according to the dissent.

The plaintiff filed a petition for certiorari in February 2026. Thus, it is possible that the Supreme Court may directly take up this issue. Notwithstanding, there are two key takeaways from this split decision. First, the causation standard applicable for employment-related claims brought under Section 504 is most likely “but for” causation (the same as under Title I of the ADA), rather than “sole” causation. Judge Bloomekatz expressly held so in her dissenting opinion, noting that Section 504(d) creates a carve-out for employment-related claims and incorporating the standards of Title I of the ADA to such claims.[24] The majority opinion, in dicta, essentially says the same thing. “Instead, § 504(d) merely states that the ‘standards’ for determining whether employment discrimination has occurred under the Rehabilitation Act are the same as those applied under Title I of the ADA.”[25] Had Judges Bush and Batchelder found that a retaliation claim existed under Section 504, they most likely would have agreed with Judge Bloomekatz that the “but for” causation standard applies to employment-related claims.

The second takeaway is consideration of whether a retaliation claim exists under Section 501 of the Rehabilitation Act,[26] which applies to disability discrimination claims against the federal government, i.e., federal sector employment. Notably, Section 501(f) has identical wording to Section 504(d).[27] Many of the same arguments raised in the Smith case — both pro and con — could be made in the context of Section 501. One notable distinction, however, is that Section 501 applies to the federal government, which normally embraces (rather than limits) broad anti-retaliation provisions and schemes. Food for thought, however.

Doug Hamill is a member of Mikel & Hamill PLLC in Chattanooga.  He primarily represents individuals in employment law matters.  He can be reached at dhamill@mhemploymentlaw.com.

A three-judge panel of the Tennessee Court of Appeals has ruled that Gov. Bill Lee's October 2025 deployment of the National Guard to Memphis is legal, reversing a judgement from Davidson County Chancellor Patricia Head Moskal. The Commercial Appeal reports that three questions were brought by the state to the appeal: whether plaintiffs invoked an available waiver of the government's immunity (known as sovereign immunity) from being sued, if they have standing and if Lee violated state law in deploying the National Guard to Memphis. According to the Daily Memphian, the panel weighed whether or not the plaintiffs had standing to sue — holding that they did not — and did not address whether Lee's deployment order was legal. Tennessee Attorney General Jonathan Skrmetti said in a press release that the ruling "recognizes that an elected official who disagrees with this effort does not have the right to veto the Governor by filing a lawsuit. When elected officials disagree about policy, we resolve that at the ballot box, not the courts." Read the appellate opinion.

Nearly three years ago, in the Fall 2023 TBA Labor & Employment Connect newsletter, I wrote an article about a then-recent decision from the National Labor Relations Board — Cemex Construction Materials Pacific LLC — that had the potential to dramatically change the landscape of union organizing in workplaces across the country.[1] In Cemex, the board adopted a new standard that encourages employers to recognize and bargain with its employees’ chosen representative without an election by shifting the burden of filing an election petition from the employees to the employer. In doing so, the decision added another tool in the board’s toolbox of remedies to fix the damage done by an employer’s unlawful influence on employees ahead of a unionization election — an order to recognize and bargain with the union even without an election. At the end of that article, I queried how Cemex might impact workplace organizing in practice. Well, dear reader, we now have an answer to that burning question. On March 6, the 6th Circuit issued a decision abrogating the Cemex decision in Brown-Forman Corp. v. NLRB.[2]

In Brown-Forman, the court took issue with the Cemex decision because it set out to establish a new legal standard, rather than resolve the parties’ dispute that was before the board. That, the panel of the 6th Circuit held, was tantamount to creating new law, a power the agency simply did not have. “Thus, because the way in which the Board created the Cemex standard constituted an improper exercise of its statutory authority, the Cemex bargaining order standard is invalid.” [3]

Without Cemex, at least in the 6th Circuit, the same dilemma that the board sought to resolve remains, namely, how to ensure fair representation elections, a right guaranteed by the National Labor Relations Act, when employers take unlawful actions to taint those elections. Finding a solution will fall to a new board now. After nearly a year without a quorum, the five-member board now has three members (a holdover Biden appointee, David Prouty, and two recent Trump appointees, James Murphy and Scott Mayer), as well as newly installed General Counsel Crystal Carey — a position akin to the board’s prosecutor — who was sworn in on Jan. 7.

The general counsel typically sets the board’s policy agenda, which would include the new board’s position on remedies in representation elections. Most labor practitioners expected Carey to advance a position contrary to Cemex. However, Carey has stated that her first priority is tackling the huge backlog of cases pending before the board. Everyone agrees that substantial processing times have hamstrung the board. Official figures put the current processing time for an unfair labor practice charge at upwards of 450 days.  Anecdotally, I think that number is low. The reality is that an employee who suffers harm from an employer’s unfair labor practice, and files a charge with the board, might be awarded relief three, four, or even five years later, a devastating prospect for most workers.

While Carey’s goal of reducing the board’s backlog is certainly laudable, her method for achieving that goal has come as a surprise. The general counsel’s office has instructed board agents, through formal memoranda, to require the charging party to present substantial evidence supporting the ULP charge within two weeks of filing. Otherwise, the charge will be dismissed. In other words, the plan is to reduce the backlog of unresolved charges by dismissing them. This is a sea change for the board, which is, at its core, an investigatory agency. Most ULP charges are filed by statutory employees without the aid of legal representation. Board agents receiving those charges act as investigators, gathering evidence from both the charging party and charged party. Carey’s guidance, however, undercuts this investigatory role, forcing that burden on unrepresented workers. What does the board do when it no longer investigates violations of the National Labor Relations Act? It shrugs.

The situation facing the board is dire. It lacks the staffing and other resources to effectively investigate charges, and it lacks the legal remedies to provide adequate relief for violations of the act. The board’s dire situation cripples enforcement of the act across the country. That is because the act grants exclusive jurisdiction over representation proceedings, i.e., union elections, and unfair labor practice claims — the key statutory rights granted employees by the act – to the board.[4] A number of proposals are being debated currently to replace the board’s exclusive jurisdiction over the act with concurrent federal or state court jurisdiction or even jurisdiction in a newly created Article I court or other agency. Once again, I find myself concluding an article in this newsletter by querying how these happenings at the board might impact workplace organizing in practice. The end of Cemex remedies is a big development, even though the decision was around for only a few years. The end of the board, after 91 years of existence, would be even bigger.

Karla Campbell practices employment law, in particular ERISA, and traditional labor law at Stranch Jennings & Garvey in Nashville. She is a long-time member of the AFL-CIO’s Union Lawyers’ Alliance and a frequent speaker on labor law topics. 

In November 2025, the 6th Circuit issued its opinion in Gray v. State Farm Mutual Automobile Insurance Company, reversing the lower court’s denial of summary judgment to the employer.[1]

Background

Monica Gray helped a colleague secure an accommodation under the Americans with Disabilities Act (ADA), in the face of opposition from the colleague’s supervisor, Joe Kyle.[2] A few months later, Kyle reported Gray to HR for timecard falsification while he was filling in for her regular manager, who was on vacation at the time. State Farm’s Human Resources investigated Kyle’s report and ultimately fired Gray for various instances of confirmed timecard falsification. HR found that Gray had falsified several timecards in addition to the one reported by Kyle. Furthermore, Gray occasionally manually changed her timecards to state she was working when she was not even in the building.

After her termination, Gray filed suit, alleging that Kyle retaliated against her — by singling her out for conduct that was widespread at State Farm — because she had helped her colleague advocate for an ADA accommodation. The U.S. District Court for the Southern District of Ohio granted summary judgment to State Farm on the basis of the honest belief rule. The 6th Circuit reversed summary judgment, finding that Gray can proceed on a theory of vicarious liability based on Kyle’s alleged bias. Judge Bloomekatz delivered the opinion in which Judge Gilman concurred. Judge Readler offered an unyielding, lengthy dissent based on the party presentation principle.

The Court’s Analysis

The court began by confirming that Gray had presented sufficient evidence of a prima facie case of retaliation.[3] In doing so, the court specifically highlighted that the assistance Gray provided to her co-worker in seeking an ADA accommodation qualified as protected activity under the ADA. The court further noted that there was a triable question regarding causation,[4] as Gray had proffered evidence that Kyle subjected her to particular scrutiny for commonplace behavior shortly after this protected activity.

Having found that Gray had shown triable issues of fact as to a prima facie case of retaliation, the court then articulated that State Farm had a legitimate, non-retaliatory reason for terminating Gray — her timecard falsification.[5] The court then swiftly disposed of Gray’s claim of direct liability against State Farm, finding that she had failed to call into question State Farm’s stated reason for firing her.[6]

However, much to the dissent’s consternation, the court does not stop there. Rather it then goes on to say “[b]ut Gray also seeks to hold State Farm vicariously liable for Kyle’s actions. She argues that Kyle reported her for retaliatory reasons and that his report influenced State Farm’s decision to fire her.”[7] The court then highlights that it has previously upheld retaliation claims when the plaintiff was singled out for adverse treatment. It also agrees that Gray “has enough evidence of differential scrutiny to raise a material dispute over Kyle’s motives.”[8]

In particular, the court noted that Gray had provided evidence that one of her teammates had “nearly identical discrepancies” in her timecards.[9] However, Kyle did not report that teammate’s timecards to HR, despite the fact that he “undisputedly knew about [the teammate’s] timecard discrepancies at the time he reported Gray.”[10] State Farm attempted to argue that this teammate’s timecard discrepancies were not “virtually identical conduct” as required of a comparator because Gray, unlike her teammate, occasionally claimed to have been working when she was not even in the building.[11]

However, the court stated that this difference between Gray’s conduct and that of her teammate only became apparent after Kyle had reported Gray to HR and thus could not sanitize the biased nature of Kyle’s report. The court further notes that Gray pointed to other employees who spent time socializing or visiting in the cafeteria while clocked in. The court was unconvinced by State Farm’s attempt to characterize these workers’ conduct as a “performance” issue distinct from Gray’s “falsification” issue.[12] Based on these particular facts, the court found that Gray had raised a genuine dispute over Kyle’s motives for reporting her sufficient to survive summary judgment on the question of pretext.[13]

State Farm attempted to argue that Kyle’s motives for reporting Gray could not be imputed to the decisionmakers who ultimately chose to terminate her for her timecard falsification, as confirmed by an independent HR investigation. However, the court found that the company “remains liable even if it relied only partially on the supervisor’s ‘biased report’” in reaching the adverse decision.[14] Further, the court noted that this remains true even if Kyle “honestly believed” the truth of his allegations. More specifically, the court stated, “But a supervisor does not have to lie in order to be biased. As we have repeatedly recognized, a supervisor can cause an employee’s termination by reporting true yet selective information.”[15] 

State Farm then tried to argue that it couldn’t be liable even if Kyle’s report was biased because it confirmed his allegations in an independent investigation. The court rejected this premise, however, stating that “employers cannot avoid liability simply because they independently confirm the substance of a selective report.”[16] The court further noted that “when a supervisor reports true but selective information, an investigation will always confirm the supervisor’s allegation.”[17] One particularly troublesome fact for State Farm in this analysis was that Gray had told HR during the investigation that she believed Kyle had targeted her because she assisted a co-worker in seeking an ADA accommodation. Despite this “State Farm made no effort to determine whether Kyle had singled Gray out for retaliatory reasons ... [A] jury could conclude that State Farm acted as a quintessential ‘conduit’ of Kyle’s bias.”[18]

In sum, the court articulated that “a subsequent investigation that does nothing more than confirm a supervisor’s true-but-selective report is by itself insufficient to break the chain of proximate cause.” However, “[a]n employer can still negate causation by establishing that the employer’s investigation resulted in an adverse action for reasons unrelated to the supervisor’s original biased action.”[19]

Ultimately, the court highlighted that “[a] jury could conclude that State Farm would not have investigated and eventually fired Gray had Kyle not reported her.”[20] Accordingly, the court reversed the lower court’s grant of summary judgment.

Moving Forward

Gray firmly announces that employers cannot avoid liability by relying on independent investigation and confirmation of the substance of an otherwise selective report. With this in mind, employers should be careful to fashion investigations into employee misconduct to determine whether the supervisor made the report selectively or for an impermissible reason.

Bethany Westcott Wilson is an associate of Kramer Rayson LLP in Knoxville, Tennessee, where she practices labor and employment law, focusing on complex federal and state leave law issues. She graduated from Lee University in 2017 and The University of Tennessee (now Winston) College of Law in 2024.

Conservation easements provide estate planners with a powerful, tax-advantaged tool to help clients preserve family land, reduce estate burdens and create lasting legacies. This free webinar, hosted by the TBA Estate Planning Section, will walk through the legal framework, attorney checklist and real-world application of conservation easements designed to enhance legal practice and deliver meaningful client outcomes. Join Foothills Land Conservancy Executive Director Mark Stevans on May 7 from noon to 1 p.m. CDT for a session on how to integrate these easements into estate planning strategies. Learn more and register here.

Effective July 1, lawyers will have to comply with new redaction rules for filings in Tennessee’s appellate courts. The TBA Appellate Practice Section will host a free webinar on the new rules and how they will significantly change the process for writing and filing briefs with the Tennessee Court of Appeals, Court of Criminal Appeals and Supreme Court. Appellate practitioners Jacob Vanzin, Ben Raybin and William Gill will explore the rules and offer a primer on how to comply with the new requirements. One hour of general CLE credit is available for a $50 processing fee. Learn more and register here.

The National Jurist reports that AccessLex has updated its free student loan calculator to reflect the upcoming changes to the student loan and repayment landscape under the One Big Beautiful Bill Act. Accurate information is critical as borrowers navigate an evolving student loan landscape, and these enhancements provide law students with a clear, comprehensive view of their borrowing and repayment options — empowering them to plan with confidence, according to AccessLex.