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Who has the burden of proving retaliation?

Most people do not go to work in the morning thinking, "Today is the day I'm going to be fired." Of course, sometimes employees make mistakes or break workplace policies, leading to a discharge, but other times a person's discharge can come as a complete surprise. Tennessee residents who find themselves in such predicaments may wonder what their legal rights are.

Tennessee is an "at will" employment state, so in general an employer can fire a worker at any time for any reason or for no reason at all. However, this power is not absolute. It is against the law for employers to discriminate against a worker based on the worker's race, sex, religion or other protected classes. In addition, workers cannot be fired for being called to serve in the military, for voting in an election or for exercising their right of association. In addition, workers cannot be fired because their wages are being garnished, because they filed a claim for workers' compensation or because they have been called to jury duty.

If a worker believes he or she was fired in retaliation for one of the above actions, it is the worker's burden to establish prima facie that the discharge was retaliatory. If the worker satisfies this burden of proof, then it is up to the employer to produce evidence that there was a legitimate, nondiscriminatory reason for firing the worker. This is a burden of production of evidence, not a burden of persuasion. If the employer provides evidence that the firing was lawful, then the burden shifts back to the worker to show that the employer's reason for firing the worker was not the true reason the worker was fired, and that the employer's reason was mere pretext for retaliating against the employee.

Every employment law case has its own unique set of facts, so arguments that could be employed in one case may not be applicable to another case. Since the information in this post cannot serve as the basis for any legal action, those wishing to pursue a lawsuit based on retaliatory discharge will want to seek professional guidance before proceeding.

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