The TBA Young Lawyers Division (YLD) will host its inaugural Business College: Transactional Law Essentials program on April 10. This in-person program is designed as a practical refresher and foundation course for new and young attorneys — or any lawyer who wants to brush up on the basics of transactional law. Geared toward real-world practice, the program focuses on core concepts, ethical considerations and emerging issues in business law, with hands-on guidance and takeaways attendees can use right away to more confidently and efficiently handle a wide range of business legal matters for their clients.

A longtime corrections officer at Knox County's Richard L. Bean Juvenile Detention Center has filed a lawsuit alleging leadership at the facility discriminated against him because he is Black. Knox News reports that Antonio Smith says he was subjected to harassment and baseless allegations, including claims that he was involved in gang and other criminal activity, that he deprived children at the facility of their rights and repeatedly broke the law, and that he had an inappropriate relationship with a female supervisor. The suit was filed Dec. 8 in U.S. District Court against the county, former interim superintendent Brian Bivens, current interim superintendent Cory Dauer and supervisor Brad Sabol.

Tennessee’s embattled Department of Children’s Services (DCS) still lacks oversight, according to a new audit from the state comptroller. Axios Nashville reports that while the audit found some improvements have been made, DCS still fails to meet the needs of abused and neglected children. The audit notes delayed and incomplete investigations of abuse and neglect claims, an over dependence on temporary transitional housing, delayed reporting of child fatalities, and a lack of oversight in juvenile detention. “These findings call for immediate attention and meaningful action to improve oversight, accountability and care for Tennessee’s most vulnerable children and youth,” an auditor told lawmakers this week.

The Tennessee Court of Appeals will hear oral arguments in March on whether the National Guard has been legally deployed to Memphis, the Commercial Appeal reports. In an order filed today, the court agreed to hear the state’s appeal of a ruling from Davidson County Chancellor Patricia Head Moskal that temporarily blocked the deployment. The court also granted the state’s request to expedite the appeal. Oral arguments have been scheduled for March 5, 2026, at 9 a.m. CST.

The University of Tennessee Winston College of Law announced in its Fall 2025 newsletter that it will rename the Institute for Professional Leadership in honor of the late Judge Pamela L. Reeves. A 1979 graduate of the law school, Reeves was the first woman to serve as both district judge and chief judge of the U.S. District Court for the Eastern District of Tennessee. Prior to joining the bench, she was respected mediator in private practice and served as TBA president from 1998-1999. According to the school, the renaming is being made possible through the generosity of the Larry Wilks Distinguished Practitioner in Residence George “Buck” T. Lewis and his wife Malinda. Lewis is a co-founder of the institute. A dedication ceremony will be held in the spring with support from Reeves’ husband and Knoxville lawyer Charles Swanson. Lewis and Swanson also are former TBA presidents.

The TBA's Year End CLE Event includes a six-hour "Rookie Series" package designed specifically for new lawyers or those looking to expand into new practice areas. Substantive law topics include introductions to personal injury, probate and civil and criminal contempt. Topical sessions look at compassionate lawyering, alternative career paths and combating burnout through mentorship. Check out the specific courses included in this package. Looking for something else? TBA also has six, eight, 10, 12 and 15-hour packages based on specific topics or practice areas, live webcasts and on-demand video all month long. Explore all the Year End options to complete your CLE requirement by Dec. 31.

Sessions from this fall’s 37th Annual Health Law Forum are now available on demand individually or in a 1-Click package, which features 15 hours of content including three hours of ethics credit. This year’s forum offered insights from health law providers, practitioners and regulators, providing the information lawyers need to stay on top of key advancements. Topics include AI in health care and contracting, regulatory fraud and abuse, legality of health equity programs, controlled substances enforcement, the rise of telehealth and compounded weight loss drugs, and the ever-popular legislative update and state case review. Sessions from the Health Law Primer also are available individually or as a 1-Click package. Topics include an introduction to the U.S. health care system, overview of fraud and abuse laws and reimbursement issues, and unique considerations in health care transactions.

In a recent decision, the 6th Circuit Court of Appeals declined to follow the prevailing approach among most federal circuit courts of appeal (and the Equal Employment Opportunity Commission [EEOC]) regarding employer liability for harassment by non-employees. In Bivens v. Zep Inc.,[1] the court held that an employer may be liable under Title VII for harassment committed by a customer only where the employer intended the harassment to occur — not merely where the employer was negligent in responding to it. This heightened standard creates a new hurdle for plaintiffs to establish employer liability in harassment cases where the alleged harasser is a non-employee.

Fact Summary

Dorothy Bivens, an African-American sales representative for Zep Inc., alleged that while she was on a sales call to a motel customer, she was subjected to sexual harassment by the motel’s manager.[2] According to Bivens, when she stepped into the motel manager’s office, he locked the door and asked her to date him.[3] Bivens declined and stated that she was married, and asked to leave the office and was allowed to do so by the manager.[4] Bivens reported the incident to her immediate supervisor, who promptly reassigned the customer to another sales representative so that Bivens would not have to interact with the motel’s manager again.[5] Neither Bivens nor her supervisor reported the incident to human resources.[6]

At around the same time, Zep determine that it needed to reduce costs.[7] Zep’s President Bill Moody made the decision to go with a reduction in force that was focused on small sales territories that generated less than $240,000 a year in revenue which included Bivens’ sales territory — projected to generate less than $100,000 annually.[8] In total, Zep eliminated 23 positions.[9] Biven’s supervisor informed her that she was being terminated.

Thereafter, Bivens sued, asserting sex-based hostile work environment harassment, retaliation and race discrimination claims under Title VII and the Michigan Elliott-Larsen Civil Rights Act (ELCRA), alleging that the customer’s manager subjected her to a hostile work environment and that she was terminated for reporting the actions of the customer’s manager and/or because of her race. The district court granted summary judgment to Zep on all claims, and Bivens appealed to the 6th Circuit Court of Appeals.

The Sixth Circuit’s Opinion

Title VII Hostile Work Environment Claim[10]

The Court of Appeals began its analysis by reviewing Bivens’ sex-based hostile work environment claim under Title VII, setting forth the prima facie elements that Bivens was required to prove:

To establish such a claim here, Bivens must show that (1) she was a member of a protected group who (2) faced unwelcome harassment, which (3) was based on her sex and (4) created a work environment that unreasonably interfered with her work performance, for which (5) Zep was responsible. Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008); cf. Meritor Sav. Bank, 477 U.S. at 63–69; Faragher v. City of Boca Raton, 524 U.S. 775, 786–93 (1998).[11]

The 6th Circuit stated that the fifth prima facie element was at issue, namely whether Zep was responsible for the alleged actions of its customer’s manager, and then proceeded to discuss the “paths” to employer liability.[12] The court noted that the first path to liability are actions taken by “owners, partners, proprietors, corporate officers, and some high-level managers” that can directly impose liability on the employer, since they “are treated as the organization’s proxy.”[13]  The court further noted that the second path to employer liability may be implicated by lower-level employees whose actions are not considered those of the company, “[b]ut in some circumstances, the employer nonetheless may be held ‘vicariously’ liable for actions taken by its lower-level employees.”[14]

The 6th Circuit turned to consider the question of whether an employer can ever be directly or vicariously liable for the actions of an alleged non-employee harasser, and if so, under what circumstances. The court first noted that “in passing Title VII, Congress created a federal species of intentional tort, ‘distinguish[ing]’ claims under Title VII from torts based on mere ‘negligent or reckless’ action” and that “[s]exual harassment under Title VII … ‘presupposes intentional conduct.’”[15] The court further noted “[b]ecause Title VII defines ‘employer’ to include ‘any agent’ of the company[16] … an employee counts as the employer’s ‘agent’ when he has agreed to ‘act’ on the employer’s ‘behalf’ and ‘subject to [its] control.’”[17]    Thus, under agency principles “the employer can be held liable either directly, for its own intentional actions, or vicariously, for those of its agent.”[18] The court noted that while employers are generally “liable for the torts that their employees commit within the scope of their employment … sexual harassment does not serve any business purpose, that tort falls outside the scope of employment.”[19] However, the court recognized that under agency law principles, an “employer is liable when the employee ‘was aided in accomplishing the tort by the existence of the agency relationship’ or the employer ‘was negligent or reckless’ in its own right in letting the employee commit the tort.”[20] 

The court stated that the “‘aided in the agency relation’ standard … encompasses instances where the harassing employee is a ‘supervisor’ who takes a ‘tangible employment action’ against the victim … as the supervisor can dock pay or demote a fellow employee only pursuant to authority afforded him by his employer” which results in the imposition of strict liability on the employer.[21]  The court then turned to address the “‘negligence’ standard … [which] governs all other cases of coworker [non-supervisor] harassment … [where] agency law principles dictate that a harasser’s unlawful intent may be imputed to the employer based only on the employer’s negligence in allowing the harassment.”[22] 

Turning to the issue of whether Zep could be responsible for the conduct of its customer’s manager, the court stated “[f]or their relationship to be deemed one of principal-agent, Zep (as the purported master) and the client (as the purported servant) each had to give their mutual “consent” to the notion that the client would “act” both “on [Zep’s] behalf” and “subject to [its] control”[23] but noted “[t]here was no such agreement here.” Here because Zep was merely a supplier to its customer and could not “exercise control over the [client’s] physical activities” the court found that “Ellerth’s agency-law-based negligence standard does not apply in these circumstances.”[24]

After determining that the negligence standard was not applicable, the court considered “whether Zep itself ‘intentionally treat[ed]’ Bivens ‘worse because of sex,’[25] — that is, whether the company intended for her harassment at the hands of the client to occur.”[26] The court noted that “the Supreme Court has explained, [that intent] is present when an actor ‘desires’ an unlawful consequence from his actions or is ‘substantially certain’ that it will result”[27] Therefore, the court reasoned that Bivens can only establish liability on behalf of Zep” by providing evidence that Zep either ‘desire[d] to cause’ her harassment or was ‘substantially certain’ that it would ‘result from’ its actions.”[28] 

In applying the intent standard to the facts presented by Bivens about the alleged harassment, the court found that “[n]one of this would allow a jury to conclude that Zep ‘desired’ such an interaction to occur or was ‘substantially certain’ that it would,”[29] and noted that “Zep is entirely absent from the timeline of this one-off event, even on Bivens’ telling, until after she returned from the unfortunate sales call and reported it to her supervisor.”[30] As such, the court affirmed summary judgment as to Bivens’ Title VII sex-based harassment claim.

In finding that a negligence-based liability standard was not appropriate in cases involving alleged harassment by non-employees, the court recognized that its holding “departs from the conclusion reached by most circuit courts to have addressed the issue as well as the EEOC’s reading of Title VII.”[31] With respect to the EEOC’s position, the court stated that the EEOC, is “authorized to issue only ‘procedural regulations’ setting forth the steps for pursuing a claim under Title VII, not substantive ones interpreting the statutory rights of parties” and that the agency’s interpretive guidelines — like § 1604.11(e) — have no ‘controlling’ effect on courts.”[32] The court further noted that “even if the agency had express authority to interpret Title VII’s substantive provisions, we would still be obliged, ‘as always,’ to ‘independently interpret the statute’”[33] and stated that it did not find the EEOC’s interpretation persuasive. With respect to the contrary holdings of most other circuit courts of appeal on the appropriate standard of liability, the court stated that “our other sister courts, seem to have ‘follow[ed] the EEOC’s guidelines on th[is] issue’ without undertaking an independent evaluation of the statute” [or] … “employ[ed] their own reasoning, [in what] … often seems like judicial policymaking.”[34]

Title VII Retaliation Claim

Addressing the merits of Bivens’ retaliation claim, the court found that the claim failed because she “cannot show that ‘her protected activity’ — complaining about a customer who sexually harassed her — 'was known to those who made th[e] decision’ to lay her off as part of the reduction-in-force.”[35] It was undisputed that Zep’s president and CEO Bill Moody, made the decision to eliminate Bivens’ sales territory and that he ‘didn’t even know who Ms. Bivens was until’ she sued the company — long after the workforce-reduction decision was final” and the court found that Bivens “‘failed to produce any direct or circumstantial evidence from which a reasonable jury could infer that’ Moody ‘knew or w[as] aware of’ her protected activity, dooming her retaliation claim.”[36] Therefore, the court found that summary judgment was appropriate as to Bivens’ retaliation claim. 

Title VII Race Discrimination Claim

Finally, the court turned to consider whether summary judgment was also appropriate as to Bivens’ claim of race discrimination.  The court found that Bivens had to supplement her ordinary prima facie showing of discrimination with “additional direct, circumstantial, or statistical evidence tending to indicate that [Zep] singled [her] out ... for discharge” because of her race since she had been terminated as apart of a reduction in force,  but found her that “additional evidence” was unavailing.[37] The evidence showed, among other things, that most of the terminated employees were white, that the reduction in force was driven by territory size and revenue projections, and that Bivens was not replaced after her termination.[38] The court found no evidence from which a reasonable jury could infer discriminatory intent on the basis of race. Therefore, the court found that summary judgment was appropriate as to Bivens’ race discrimination claim. 

Takeaways

The Bivens decision places the 6th Circuit at odds with most other federal circuit courts of appeal and the EEOC’s long-standing guidance on customer harassment, and illustrates how courts will independently review statutory provisions, without deference to agency interpretations, under Loper. For employers in Kentucky, Michigan, Ohio and Tennessee, the ruling significantly narrows potential liability for third-party harassment under Title VII. This ruling will be of particular benefit to employers located within the 6th Circuit, such as retailers, where employees regularly interact with customers. Regardless, employers should continue to investigate when customer or other third-party harassment is reported and take prompt and effective remedial action as appropriate under the circumstances. Employers should also continue to conduct regular workplace training to educate managers and employees on their obligations and rights under Title VII, and company policies prohibiting discrimination, harassment and retaliation.  

Social media has become a persistent source of legal risk for employers. While private employers generally have broad discretion to discipline or terminate employees for volatile or controversial social media activity, that discretion is not unlimited. Termination decisions tied to online speech can implicate a complex overlay of federal and state laws, particularly where posts touch on protected activities, working conditions or whistleblowing activity.

This article outlines the primary legal risks for private employers and offers practical guidance for navigating termination decisions involving volatile social media posts.

At Will Employment Has Its Limits

Most private-sector employment in the United States is "at-will," meaning employers may terminate employees for any reason or no reason at all — so long as the reason is not unlawful. Public employers operate under a different framework, as employee speech may implicate First Amendment protections. For private employers, however, constitutional free speech principles generally do not apply.

At-will status does not insulate employers from liability when a termination decision intersects with statutory or contractual protections.

Union Employees and 'Just Cause' Requirements

Employees covered by a collective bargaining agreement typically may only be terminated for "just cause," and discipline for social media activity is often subject to grievance and arbitration procedures. In these cases, employer policies, consistency of enforcement, past practice and proportionality of discipline are critical.

Employment Contracts

Employment contracts come in all shapes and sizes, but many of them also require “just cause” for termination. Frequently, “just cause” is narrowly defined in the contract. So before making a termination decision with respect to an employee that has a contract, it is a good idea to review the specific wording of the contract to decide whether the employee can be terminated without constituting a breach of contract.

Federal and State Statutes: Legal Risks in Connection with Social Media Terminations

Even “at will” employees have federal and state statutory protections from unlawful terminations in connection with volatile social media posts.

Title VII, ADA and ADEA

Termination decisions may run afoul of federal or state discrimination or retaliation statutes if an employee’s social media post constitutes protected activity. Online advocacy — even outside the workplace — can qualify as protected opposition activity under these statutes if it reasonably opposes perceived discrimination. For example, an employee’s post saying that their employer discriminates against older workers likely would be protected under the ADEA, and the employee might be able to successfully pursue a retaliation claim if terminated for that social media post.

National Labor Relations Act (NLRA)

The NLRA protects concerted activity related to terms and conditions of employment, even in non-union workplaces. Social media posts addressing pay, scheduling, safety, management treatment or workplace policies — particularly when made in coordination with or on behalf of coworkers — may fall within the Act’s protections. For example, an employee’s post saying that their employer is unfair to its employees and that the employees ought to form a union, likely would be protected under the NLRA.

Whistleblower Protections

Federal and state whistleblower laws may protect employees who disclose or complain about perceived legal violations. Social media posts alleging unlawful conduct by an employer can create retaliation risk, even where the allegations are ultimately shown to be untrue.

Focusing on Tennessee

Tennessee remains a relatively employer-friendly, at-will employment jurisdiction. Tennessee law does not provide broad statutory protections for lawful off-duty conduct or political speech by private employees. As a result, private employers in Tennessee generally retain substantial discretion to discipline or terminate employees for volatile or controversial social media posts.

That discretion is not absolute. Termination decisions still carry risk where they implicate federal or state discrimination or retaliation statutes, NLRA protections for concerted activity, or Tennessee whistleblower protections.

Examples of Higher Risk Jurisdictions: California and New York

California and New York illustrate how state law can significantly limit an employer’s discretion to terminate employees for off-duty social media activity. California law protects lawful off-duty conduct and political expression under multiple statutes, while New York Labor Law § 201-d protects lawful political and recreational activities conducted off duty.

In both states, termination decisions based on social media posts are vulnerable where the employer cannot demonstrate a clear nexus between the post and legitimate business harm. Employers face heightened risk when discipline appears driven by disagreement with an employee’s viewpoint rather than demonstrable workplace impact.

The Importance of Social Media Policies

A clear, well-drafted and consistently enforced social media policy remains one of an employer’s strongest defenses. Effective policies should identify prohibited conduct with reasonable specificity, tie restrictions to legitimate business interests, avoid overbroad prohibitions that could chill protected activity and be enforced consistently.

Practical Guidance for Employers

Before terminating an employee for a volatile social media post, employers should consider:

• Whether the post implicates protected activity
• Whether the post could be construed as concerted activity under the NLRA
• Whether the employer’s social media policy is being properly and consistently applied
• Whether lesser discipline would adequately address the issue

Key Takeaways

Private employers generally have broad discretion to discipline employees for volatile social media posts, but legal risk increases when termination decisions intersect with discrimination, retaliation, concerted activity, whistleblowing or state off-duty conduct protections. The most effective risk-management strategies remain clear policies, thoughtful legal analysis, documented business justifications and consistent enforcement.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Readers should consult counsel regarding specific situations.

Chuck Lee is vice-chair of Miller & Martin’s Litigation Department and practices out of the firm’s Chattanooga office.

Bailey Lowe joined the Chattanooga office of Miller & Martin as a litigation associate in 2025 after graduating from Emory University School of Law. 

Introduction

The U.S. Supreme Court is poised to decide several cases this term that could significantly impact employment law. These cases address complex issues ranging from government contractor immunity, pension plan withdrawal liability, to statutory protections for federal agency commissioners. Below is a brief review of the major cases under consideration and their potential implications for employers, employees, and federal agencies.

GEO Group, Inc. v. Menocal: Derivative Sovereign Immunity and the Collateral Order Doctrine

On Nov. 10, the Supreme Court heard oral arguments in The GEO Group, Inc. v. Menocal,[1] a case that centers on whether government contractors can immediately appeal a court order denying a claim of derivative sovereign immunity under the collateral order doctrine. The plaintiffs filed a class action lawsuit in 2014, alleging that immigrant detainees who performed janitorial services and other low paying work for the Aurora Immigration Processing Center's (AIPC) were in essence forced labor in violation of the Trafficking Victims Protection Act (TVPA)[2], among other claims.

GEO, the government contractor operating AIPC, asserted that its actions were authorized and directed by Immigration and Customs Enforcement (ICE) through a government contract, and therefore it should be shielded by derivative sovereign immunity. The plaintiffs countered that GEO’s broad discretion in facility operations removed this protection. The district court sided with the plaintiffs, granting their motion for summary judgment and denying GEO’s. GEO appealed, but the 10th Circuit dismissed the appeal for lack of a final judgment.

A circuit split currently exists: the 2nd, 6th, and 11th circuits hold that denial of derivative sovereign immunity is an appealable collateral order, whereas the 9th, 4th, 5th, 7th and 10th circuits disagree. The Supreme Court’s forthcoming decision will clarify whether such denials are immediately appealable, impacting how government contractors defend themselves in employment-related litigation.

M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund: Withdrawal Liability under ERISA

Another significant case is M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, [3] which addresses how withdrawal liability is calculated when employers exit multiemployer pension plans under the Employee Retirement Income Security Act (ERISA).[4] The petitioners withdrew from the IAM National Pension Fund in 2018. ERISA prescribes that withdrawal liability calculations should be based on actuarial assumptions coinciding with the “end of the plan year.”[5]

In this case, the plan year ended on Dec. 31, 2017, and actuarial assumptions were set before that date. However, when calculating the withdrawal liability, a different discount rate was applied after the measurement date, significantly increasing the petitioners’ liability. The core question is whether ERISA mandates the use of year-end actuarial assumptions or allows for post-measurement changes.

This issue has created a circuit split: the 2nd Circuit requires calculations as of the last day of the prior year using assumptions in effect on that day,[6] while the D.C. Circuit permits using assumptions calculated after the measurement date.[7] The Supreme Court’s decision will affect employers participating in multiemployer pension plans, potentially altering withdrawal liability expectations and influencing future participation and exit strategies.

Trump v. Slaughter: Statutory Removal Protections and Separation of Powers

Perhaps the most closely watched employment law case this term is Trump v. Slaughter.[8] Earlier this year, President Trump removed two Federal Trade Commission (FTC) commissioners, Rebecca Slaughter and Alvaro Bedoya, with the plaintiffs arguing that these actions failed to meet the statutory “cause” standard required for removal.[9] Bedoya later resigned, leaving Slaughter as the sole plaintiff. Slaughter’s motion for summary judgment was granted, ordering her reinstatement, but the Supreme Court stayed this ruling pending review.

Slaughter relies on Humphrey's Executor v. United States,[10] a 1935 Supreme Court case which established that Congress could constitutionally restrict the president's removal power for officials of independent agencies like the FTC. The government contends that Humphrey’s Executor should be overturned on the grounds that it conflicts with the Vesting Clause of Article II of the Constitution, as interpreted under the unitary executive theory. The Supreme Court’s taking of this appeal appears to signal that the court is now re-examining whether these legislative removal protections are constitutional and if Humphrey's Executor should be overruled. The court will also consider whether federal courts may prevent a person’s removal from public office through equitable or legal relief.

Oral arguments in this case were presented before the court on December 8 with Solicitor General Sauer referring to Humphrey’s Executor as a “decaying husk.” During the proceedings, several justices expressed questions and concerns, particularly about the potential disruptions that might result from overturning Humphrey's Executor. Justice Sotomayor notably remarked that granting the petitioner’s request would fundamentally “destroy the structure of government.” Many of the justices’ inquiries focused on distinguishing between purely executive, purely legislative, and hybrid agency functions, in order to evaluate how the decision could affect different government agencies depending on their roles. Justice Barrett may have tipped her hand by commenting that Humphrey's Executor has been "eroded" over the years. The oral arguments in this case were notably contentious, a dynamic likely fueled by the significant political undertones inherent in the question before the court and the heightened polarization between political parties at present.

This case has broad implications for employment law and the independence of federal agencies. The outcome could affect not only the FTC but also other independent agencies such as the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB).

Nawara v. Cook County [11]: Can an Employee Without a Disability Recover Under the ADA?

In this case, the plaintiff was placed on a leave of absence after a series of confrontations with co-workers, pending completion of a fitness-for-duty examination. At trial, the jury determined that requiring the plaintiff to undergo a fitness-for-duty test was a violation of 42 U.S.C. §12112(d)(4) of the Americans with Disabilities Act (ADA),[12] but did not award any damages. Upon post-trial motions of both parties, the district court ruled that, despite the jury’s finding of a violation of §12112(d)(4), the employer was not obligated to provide back pay to the plaintiff, reasoning that the fitness-for-duty requirement was not based on the plaintiff’s actual or perceived disability.[13] According to the court, use of unlawful medical examinations only constitutes unlawful discrimination subject to back pay damages when it is done in such a way that it discriminates against a qualified individual on the basis of disability. Both parties then appealed.

The 7th Circuit disagreed with the district court on the issue of back pay.[14] It concluded that the plaintiff was entitled to back pay due to the employer’s violation of the ADA, even though the plaintiff did not have, nor was perceived to have, a disability.

On Sept. 12, the Cook County Sheriff’s Office filed a petition asking the Supreme Court to clarify whether the ADA is violated — and whether damages are appropriate — when an employer requires an unsupported medical examination of an employee, regardless of whether the employee has or is perceived to have a disability. Currently, the 2nd, 3rd, 5th and 10th circuits hold that an employee cannot recover damages under the ADA without an ADA-defined disability, whereas the 6th and 7th circuits allow recovery regardless of whether the employee has a disability or perceived disability.

As of now, the court has not yet decided whether it will hear the case.

Conclusion

The Supreme Court’s decisions in these cases are likely to reshape key aspects of employment law. Whether addressing the appealability of immunity denials, clarifying pension withdrawal calculations, redefining statutory protections for federal agency commissioners or appropriate construction of the ADA, the outcomes will have lasting effects on employers, employees, and the operations of government agencies.

Richard D. Bennett is a partner at Phelps Dunbar LLP in it's Memphis office. He is a member of the Labor and Employment and Employment Litigation Practice Groups at Phelps and a graduate of the University of Memphis Cecil C. Humphreys School of Law. He may be reached at rick.bennett@phelps.com or 901-259-7121. 

Rachel Ducker is an associate with Phelps Dunbar LLP in its Memphis office. She works with the firm’s Employment Litigation Practice Group at Phelps and is a graduate of the University of Alabama School of Law. She may be reached at rachel.ducker@phelps.com or 901-259-7136.