A Madison County jury found Defendant, Bobby Neil Mathis, Jr., guilty as charged of one count of rape of a child and one count of continuous sexual abuse of a child. The trial court merged the two counts and sentenced Defendant to thirty years in the Tennessee Department of Correction. On appeal, Defendant argues he is entitled to a new trial because the State failed to elect offenses for the two counts presented to the jury, the trial court erred in failing to issue a modified unanimity instruction, and the evidence was insufficient to sustain the jury’s verdicts. After review, we affirm the judgment of the trial court.

Defendant, Frank James Hastings, appeals his effective sentence of twenty-two years related to three cases in which he entered open best interest pleas. On appeal, Defendant argues that his sentence is excessive and that the trial court erred by imposing partial consecutive service and denying alternative sentencing. After a thorough review of the record, we affirm the judgments of the trial court.

The Defendant, Rashard Fair, pled guilty in the Shelby County Criminal Court to voluntary manslaughter and received a three-year sentence to be served as one year in confinement followed by two years on probation. On appeal, the Defendant contends that the trial court erred by denying his requests for judicial diversion and full probation and that the trial court should have disqualified itself because the trial court’s impartiality might reasonably be questioned. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court erred by failing to address fully on the record its reasons for denying judicial diversion and full probation. We also conclude that the trial court’s statements during the sentencing hearing, particularly the trial court’s comments about judicial diversion for the crime of voluntary manslaughter and the trial court’s decision to increase the Defendant’s sentence of confinement in response to defense counsel’s request for bond pending appeal, call into question the trial court’s impartiality in this case. Accordingly, we reverse and vacate the judgment of the trial court and remand the case for a new sentencing hearing, at which another judge shall preside, to determine the length and manner of service of the Defendant’s sentence.

Register now for the 28th Annual Labor & Employment Law Forum as we bring together professionals, labor and employment attorneys, and in-house counsel on May 3 in Nashville. This is a terrific opportunity to learn from some of the top professionals in the labor and employment arena who will provide practical insight on emerging trends and critical issues. This year’s program features topics such as non-competition agreements, emerging labor trends, new pregnancy accommodation laws, case law update and the use of artificial intelligence in discovery and beyond. As a member of the TBA L&E Section, you will always receive a section member discount to attend CLE programming produced by the section.

Register now!

The TBA YLD held an Essential Documents for Essential Workers (EDEW) clinic on Feb. 24. Volunteer attorneys and Belmont law students drafted wills, powers of attorney and advanced health care directives for low income clients, providing a total of $16,000 in free legal services. See a photo from the event.

Join us as we celebrate National Ethics Awareness Month on March 27 with three back-to-back ethics webcasts led by CLE performer Stuart Teicher. Starting at 9 a.m. CST, Teicher will host Learn by Doing: An Hour of Legal Writing Exercises, a look at how to improve your legal writing. At 10:15 a.m., Teicher will take up Airplane Etiquette and Attorney Ethics, followed by Taylor Swift is a Genius. Even About Legal Ethics at 11:30 a.m. Teicher will discuss how ethics rules have been invoked in some of Taylor Swift’s run ins with the legal system. Visit the individual event pages for more information and to register.

As chair of the Labor & Employment Section, I want to thank you for your section membership and your support for what we do each year. As you know, each May our section holds its annual Labor & Employment Forum. This year, our 28th Annual Forum will be held on May 3 in Nashville. I am excited about our top-notch line-up of panelists, who will cover a wide variety of issues, including non-competition agreements, emerging labor trends, new pregnancy accommodation laws and the use of artificial intelligence in discovery and beyond. In addition to the annual forum, our section presents employment-related CLE webinars. Our most recent webinar was a panel discussion of federal magistrate judges on the topic of discovery disputes. If you missed it, you can always view these presentations in the TBA CLE Course Catalog.

Finally, our section also publishes a quarterly newsletter in which seasoned practitioners share their insight about developing trends, caselaw updates, and new laws and regulations that can have a major impact on the future of labor and employment law. Our newsletter strives to seek contributing authors from different viewpoints, including views from employees, unions, management and in-house counsel.

Thank you for your support of the TBA Labor & Employment Law Section. If you have a friend or colleague who might be interested in joining our section, please feel free to contact me (dhamill@mhemploymentlaw.com) or TBA Section Coordinator Chelsea Bennett (cbennett@tnbar.org). If you have ideas or thoughts for our section, or if you are interested in writing an article for the newsletter, please reach out to me.

— Doug Hamill

House Bill 1605 passed Monday with a vote of 70-24. The bill, sponsored by Rep. Gino Bulso, R-Brentwood, would prohibit the display of any flags that “represent a political viewpoint, including but not limited to, a partisan, racial, sexual orientation, gender or other ideological viewpoint.” The bill does not explicitly prohibit the display of the Nazi or Confederate flags, reports the Tennessean. Bulso confirmed that he sponsored the bill on behalf of parents in his district who are concerned about display of the pride flags in Williamson County Schools classrooms. A companion bill could be up for a final vote in the Senate as early as Thursday, having passed the Senate Education Committee in a 5-4 vote last week. HB1183/SB0503, a wide-ranging amendment that would overhaul Tennessee's standardized testing requirements for public school students and make sweeping changes to teacher and principal accountability procedures, was filed Monday. The Tennessean reports that the new, 39-page House amendment is vastly different from a 17-page Senate version and Gov. Bill Lee's seven-page bill that more narrowly deals with school choice. A first committee hearing on the bill was scheduled for today in the House K-12 Subcommittee, and the Senate Education Committee is set to take up the bill on Wednesday afternoon.

Is the rule requiring members of a majority demographic group to show additional “background circumstances” to support their Title VII discrimination claims itself discriminatory? The 6th Circuit’s analysis of the “background circumstances” rule in its recent decision in Ames v. Ohio Department of Youth Services[1] raised that dilemma for at least one jurist.

In Ames, the plaintiff, a heterosexual woman and agency administrator, applied but was not selected for a promotion to bureau chief. Only four days later, the agency also demoted plaintiff and replaced her with a gay man. Several months after her demotion, a gay woman was selected for the bureau chief position for which plaintiff had applied and had been rejected. The plaintiff filed suit claiming she was discriminated against because of her sex and her sexual orientation. The district court granted of summary judgment in favor of the agency.

Affirming the district court’s grant of summary judgment, the 6th Circuit explained that because the plaintiff was “heterosexual . . . she must make a showing in addition to the usual ones for establishing a prima-facie case,”[2] and that she “must show ‘background circumstances’ to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”[3]

The majority implicitly recognized that the facts alleged by plaintiff sufficiently supported a standard prima facie case of discrimination: she was demoted and denied a position and replaced by or rejected in favor of a gay individual. Her claim failed, however, because she did not “mak[e] a showing with evidence that a member of the relevant minority group . . . made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the [agency] against members of the majority group.”[4] In other words, she failed to present those additional background circumstances required for reverse discrimination claims.

Concurring in the majority’s finding that the plaintiff could not demonstrate the agency’s legitimate, non-discriminatory reason was pretextual, Judge Raymond Kethledge expressed his disfavor of the background circumstances rule. Notably, Judge Kethledge’s disagreement was not with the application of the rule, but with its very existence. 

Reasoning that the plain language of Title VII itself should be dispositive of the issue, Judge Kethledge explained that “Title VII . . . bars employment discrimination against ‘any individual’ — itself a phrase that is entirely clear — ‘because of such individual’s . . . sex.’”[5] Yet, the background circumstances rule “impose[s] different burdens on different plaintiffs based on their membership in different demographic groups.”[6]

Using the instant case as an illustration of the apparent disparities caused by the rule, Judge Kethledge explained that no one disputed the plaintiff made a prima facie showing of discrimination based on her sexual orientation and, had plaintiff been a gay person, this would have been sufficient. Yet, because plaintiff was not a gay person, her claim was treated differently — requiring an additional requisite showing that she would not otherwise have to make but for her sexual orientation. The result, as Judge Kethledge noted, was that plaintiff was denied a jury trial on her claim solely because of the application of the “background circumstances” rule (i.e., solely because of her membership in a majority group).

Judge Kethledge described the background circumstances rule as “not a gloss upon the 1964 Act, but a deep scratch across its surface.”[7] Judge Kethledge explained this was because Title VII expressly protects any individual, but the application of the background circumstances rule inherently treats some individuals worse than others or “discriminates” against them based on their membership in a particular protected group — something the “statute forbids.”[8] He expressed hope that the Supreme Court would address the issue, noting the current split between the circuits on the issue with the 6th, 7th, 8th, 10th and D.C. Circuits having adopted the background circumstances rule and the 3rd and 11th Circuits having rejected it. In Judge Kethledge’s opinion, “[O]ur court and others have lost their bearings in adopting this rule.”[9]

The “background circumstances” rule was first adopted by the D.C. Circuit in Parker v. Baltimore & O.R. Co.,[10] a reverse race and sex discrimination claim brought by a white male. The court described its position as dealing with “more difficult problems . . . none more difficult than the delicate balance of interests necessary in adjudicating the claims of ‘reverse’ discrimination that sometimes accompany an employer’s efforts to improve the record of his hiring practices.”[11]

Considering the plaintiff’s membership in several majority demographic groups, the court determined that a “further adjustment” to the McDonnell-Douglas burden shifting standard had to be made. The court explained this was because the original McDonnell-Douglas standard “required the plaintiff to show ‘that he belongs to a [] minority.’” In creating the background circumstances rule, the court recognized that “[w]hites [or other majority groups] are also [] protected [] under Title VII, but it defie[d] common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.’”[12] Thus, the court held that plaintiffs who belong to majority groups may only rely on the McDonnell-Douglas criteria to prove a prima facie case “when background circumstances support the suspicion that that the defendant is that unusual employer who discriminates against the majority.”[13]

This question is, perhaps, ripe for the United States Supreme Court. Considering the outward societal factors that undoubtedly played a role in the adoption of the background circumstances rule, it seems any subsequent review of the rule by the Supreme Court will necessarily include a lengthy and in-depth analysis of past and current social considerations and the history and purpose of Title VII. Regardless, as it currently stands, plaintiffs belonging to majority groups in the 6th and several other Circuits, face the battle of proving additional, background circumstances in order to maintain their discrimination claims.

Sarah Belchic is an associate in Littler Mendelson PC’s Nashville office who focuses her practice on labor and employment law matters. Sarah previously externed for the Equal Employment Opportunity Commission Hearing Unit in the Memphis Field Office, working closely with the administrative law judges. She can be reached at SBelchic@littler.com.

Eric Stevens is a shareholder in Littler Mendelson PC’s Nashville office with over 40 years of employment and general civil litigation experience, providing common-sense advice and representing employers in administrative and employment litigation, with a focus in the areas of healthcare and financial institutions. Stevens is also a Tennessee Supreme Court Rule 31 listed civil mediator. He can be reached at EStevens@littler.com.

The National Coalition of 100 Black Women, Chattanooga Chapter, will host a live public forum on Facebook this Thursday at 7 p.m. EST to hear from local candidates for Criminal Court judge, Circuit Court judge, and School Board Districts 1, 2,4,7, 10 and 11. Questions welcome.