News And Articles

The Arrest

If you are charged with a criminal offense in Tennessee, you may or may not be immediately taken into custody. If you are not immediately taken into custody, most likely the arrest is on a minor charge and you are issued, what the state calls, a citation. Under most circumstances, citations are orders to appear in court. You may also be ordered to appear at the jail for booking where your fingerprints and photograph will be taken and then you will be given a court date.

If you are not arrested by citation, then most likely, you are arrested on a criminal warrant. The criminal warrant has to be sworn to and signed by a Judge or Judicial Magistrate. If a police officer observes you committing a misdemeanor offense, he may arrest you on the spot and a warrant can be obtained after you are brought to jail. If you commit a misdemeanor offense outside the presence or observation of a police officer, then, under most circumstances, an individual will go to a Judge or a Magistrate and swear out a warrant against you for your arrest. This individual may be a victim or a witness to a crime. In Tennessee, as in most other states, a misdemeanor offense is one that is punishable by less than one year in jail. Some examples of misdemeanors are: 1st, 2nd and 3rd DUI's, simple possession of drugs, theft under $500.00, and driving on a revoked license. Any offense that carries a possible jail sentence of one year or more is considered a felony. Some examples of felonies are: murder, rape, possession of drugs with the intent to resale, theft of large amounts of money.

In Knox County, Tennessee, after you are arrested, you are taken before a Judicial Magistrate for an arraignment. Many arraignments are accomplished by video conference between you and the Judicial Commissioner. An arraignment is your first opportunity to be advised of the charges against you. A Judicial Commissioner who conducts a proper arraignment will advise you of the charges being brought against you, advise you that you have a right to an attorney, and then question whether or not you can afford your own attorney. If you indicate that you cannot afford your own attorney, the Judicial Commissioner will obtain financial information from you to make a determination of whether or not you qualify for a public defender. In Knox County, and many other counties in the state of Tennessee, a special county public defender organization is established to provide services to indigent defendants. In some cases, the Public Defender's Office may have represented an individual that would be in conflict with your particular situation. In that case, you would be appointed a private attorney who is on an appointment list.

At the arraignment in Knox County, some Judicial Commissioners ask whether or not you wish to plead guilty. There has been confusion in the past as to whether or not you are really pleading guilty at this point. Please be advised that you cannot plead guilty in front of a Judicial Commissioner. You can only tell the Commissioner that you wish to plead guilty. The Judicial Commissioner cannot make a legal determination of your guilt. Only a Judge can pronounce you guilty.

After being arrested in the state of Tennessee, you are entitled to certain rights. You are entitled to remain silent. This means you do not have to say anything about the charges against you. No one is supposed to put any emotional or physical pressure on you to make you talk about the charges. However, sometimes police officers or detectives will put pressure on you to make you talk about the charge. This pressure is designed only to aid in your conviction; you do not have to talk to them. You also have a right to legal representation. As discussed earlier, if you cannot afford your own attorney, an attorney will be appointed for you. You have the absolute right to plead "not guilty." The laws of the United States and the State of Tennessee declare and provide that you are presumed innocent unless and until the State, through its prosecutors and witnesses, prove you are guilty beyond all reasonable doubt. You never have the obligation of proving your innocence. The state must prove you are guilty.

After the arraignment, you will have a court date. The court date is called a preliminary hearing date and, depending on the type of charge, you will be assigned to one of four different General Sessions courts. If you are arrested in Memphis, Tennessee, you may be assigned to one of twelve or more General Sessions courts. The specific information provided here is directed toward the procedures in Knox County, Tennessee. These procedures apply to individuals arrested by the Knoxville Police Department, the Knox County Sheriff's Department or Tennessee Highway Patrol within the jurisdiction of Knox County. Many of the procedures of Knox County are similar throughout the state. You are entitled to a preliminary hearing within ten (10) days of your arrest if you are still in custody. The law provides that you are entitled to a preliminary hearing within thirty (30) days if you are on bond.

The Bail Bond

A bond is set by the Judicial Commissioner at or about the time of your arrest or arraignment. A bond is to insure that you will appear for your court date. A bond is not designed to punish you or keep you in jail. Of course, the more serious the offense, the higher the bond. A bond can be posted in many different ways. When, for instance, you have a $1,000.00 bond, it may be posted by paying $1,000.00 cash into the court. If you post a cash bond, the bond money will be returned at the end of all the court proceedings. You may also hire a bondsman to post your bond. Generally, bondsmen charge a fee of 10% to post your bond. Therefore, a $1,000.00 bond would cost $100.00 in fees if you hired a bondsman. Some bondsmen charge a processing fee of approximately $25.00 to $50.00 on top of the bond fee. The money you pay the bondsman is non-refundable. Always ask specific questions about the money you are paying a bondsman to understand exactly what you are getting and what you may or may not get back.

Another way to post bond is by pledging property. In most cases, this way involves pledging real estate or land to secure your bond. This type of bond takes more time because the court clerk must be assured that the property is valuable and is not encumbered by mortgages or liens. Usually, the court clerk will take property in an amount somewhere over the bond amount. For instance, a $1,000.00 bond may require property worth $1,500.00 to $2,000.00. Some form of trust deed or transfer of property is required granting the court the ownership of the property during the time the case is active. Again, at the end of the case, the property will be returned as long as the defendant does not disappear. If a bond is posted and the defendant does disappear, the court will keep the bond. In the case of a bonding company, the court will make the bonding company pay the full bond and then the bail bondsman will come looking for you.

Legal Fee Structures

There is no set rule or requirement on how attorneys are to charge fees. Usually, the type of fee charged depends on the type of representation being offered. For instance, a lawyer may charge an hourly rate for work performed for his clients. The hourly rate normally does not include any costs or expenses incurred in the litigation. An attorney representing a business client concerning the client's business issues is one example of an hourly rate fee.

Some attorneys handle cases on a contingency fee basis. Normally, on a contingency fee basis, the attorney is trying to recover a settlement for the client. Most automobile accidents are handled on a contingency fee basis. In such representation, the attorney may agree to pay the costs of the litigation such as filing fees, deposition costs, court reporter costs, and subpoenas. Many times these types of costs will be reimbursed back to the attorney out of the client's funds at time of settlement. An attorney that takes a case on a contingency fee basis usually does so under the understanding that the attorney will not be paid for his time and efforts in the case unless there is a recovery of a settlement for the client. However, some attorneys still insist on being reimbursed for any expenses or costs the attorney has paid, even though the client ultimately does not receive a settlement. The case may be settled informally through negotiations between the attorney and the other side, or, may be provided by a jury, if the case cannot be settled and has to go to trial.

Another common form of attorney fees are retainers in criminal cases. Most criminal defense attorneys require a fee before they will undertake representation in a criminal case. Some attorneys will accept less than all of the fee before representation begins. Some attorneys will structure their fee arrangement on whether the case goes to trial or whether it is resolved in some other fashion other than a jury trial. Keeping in mind that most criminal cases do not go to a jury trial, inquiry should be made at the onset on how the attorney is planning on handling the case and whether he is charging for a trial fee or less than a trial fee. As in other types of representation, costs in criminal cases can include expert witness fees, subpoena fees and investigation fees. These issues should be discussed at the beginning of representation.

Miranda Rights

The Fifth Amendment to the United States Constitution guarantees that no individual accused of a crime can be coerced or forced to testify or incriminate himself. This means that an individual does not have to talk about any potential charges against him to authorities. Frequently, when people are arrested, they are concerned because they were not read "their rights." The rights of which they are speaking are the right to remain silent and the right to be told that anything they say can and will be used against them in a criminal prosecution. An individual also has a right to a lawyer and if the individual cannot afford a lawyer, one will be appointed to represent him at no charge. These are the basic Miranda rights.

Many times people are arrested and they are not given or read their Miranda rights. Basically, Miranda rights are designed to protect an individual from incriminating himself. This means a person cannot be forced to confess. However, many times the police are not concerned with what a person will say and therefore they do not read the person his Miranda rights. It is only when a person is being interrogated while in police custody that the rights are important and applied. If a person volunteers information without being asked, then the rights do not apply.

If a person is interrogated while in custody and asked questions about the offense, then that person's statements cannot be used against him if he has not been read his rights first.

Federal vs. State Courts

If you live in the United States, you are under the jurisdiction of both federal law and state law. That means that certain federal laws are in affect and apply to you as well as state laws.

The Federal Court system starts in the United States District Court. The next higher Federal Court is the United States Court of Appeals and the highest Federal Court is the United States Supreme Court. There are three United States District Courts in Tennessee, one for each grand division. The United States District Court for the Eastern District is located in Knoxville, Tennessee with branch courthouses in Chattanooga and Greeneville.

Each state has a State Court system that is completely separate from the Federal Court system. In Tennessee there are three major trial court categories. These categories consist of: General Sessions Court, Circuit Court, and Chancery Court. Circuit Court has sub-courts which deal with strictly divorce or child support. Circuit Court also has a Criminal Court division. General Sessions Court also has a Criminal and a Civil section. Most people that are arrested have their cases start in General Sessions Court, Criminal Division. In Knox County, the General Sessions Criminal Divisions is further broken down into Misdemeanor Court, DUI Court, Felony Court and Traffic Court. A fifth division in General Sessions Court for Knox County is Civil Court, or what is commonly known as Small Claims Court. Tennessee has a Chancery Court system that is not available in many other states. Chancery Court is what is called a court of equity. If you have a case in Chancery Court you probably will not have a jury trial. Your trials in Chancery Court are conducted by a Chancellor. Many cases in Chancery Court have to do with contract violations or land disputes. Circuit Courts in Tennessee include courts that handle auto accidents and negligence claims, among other types of actions.

The Federal Court system also has jurisdiction, or, in other words, has authority to hear both civil and criminal cases. In the Federal Court system, the same Judge and court have the authority to hold trials in both civil matters and criminal matters. Trials in Federal Court start in the United States District Court. Civil lawsuits in Federal Court can only be brought if the Plaintiff, in other words, the party bringing the lawsuit, has jurisdiction. Jurisdiction is defined as the authority, or the right, to be in a certain court. A civil trial in Federal Court usually requires diversity of citizenship and an amount in controversy in excess of $75,000.00 excluding interest and costs, or a question of Federal Law. For instance, if a citizen of Tennessee is injured in an automobile accident by a driver from another state, then suing that driver from another state in federal court in Tennessee would be diversity of citizenship. A lawsuit may be brought in Federal Court under these circumstances if there is diversity (the plaintiff and the defendant live in different states) and the amount of damages is in excess of $75,000.00 excluding interest and costs. The same lawsuit could be brought in State Court without the $75,000.00 damage requirement. Therefore, and injured party has the possibility of filing a lawsuit in either Federal or State Court for the same accident provided the parties qualify under the Federal requirements.

Just as some cases may be brought in either State or Federal Court, some criminal cases may also be prosecuted in either State of Federal Court. In other words, if you commit a crime in the state of Tennessee, or for that matter, any other state, you very well could be prosecuted either by that State's authorities or Federal authorities. Federal prosecution is more limited than State prosecution because there are fewer Federal criminal laws written and enforced in Federal Court as compared to State Court. However, some laws are both punishable by State or Federal prosecution. For instance, a drug offense is a law against the State, and also a violation of Federal law. In the worst case scenario, you could possibly be prosecuted in State and Federal Court for the same violation. This double prosecution happens most frequently in drug offenses. It may be double prosecution but, it is not double jeopardy to be prosecuted in State Court and Federal Court for the same offense. It is not double jeopardy because the State Court system and the Federal Court system have been determined to be separate sovereign jurisdictions.

If you are contemplating bringing a legal action, you should consult an attorney for the appropriate court. You should inquire as to the attorney's experience in that court system. It is advisable to have legal counsel that is familiar with the type of legal action you are involved in and the court that you are involved in. Having an experienced lawyer for a criminal defense is just as important.

The Preliminary Hearing

If you are arrested in Tennessee on a criminal warrant, you are entitled to a preliminary hearing. All people charged with a crime that carries a possibility of a jail sentence are entitled to a preliminary hearing whether the charge be a DUI, drug charge or murder. Not all cases have a preliminary hearing. The case may be one that can be worked out or negotiated in General Sessions Court. If the case is worked out in General Sessions Court, the most usual occurrence is a plea and sentence. The preliminary hearing is a test to determine whether or not there is probable cause or, in other words, enough evidence for the State to continue to charge you with the offense. In most circumstances, the preliminary hearing is where the State, represented by prosecutors or assistant attorney generals, will present evidence to the General Sessions Court Judge. After the Judge hears the evidence, the Judge is required to determine whether the State has shown by preponderance of the evidence that a charge has been committed and you are the one who committed it. In other words, the State must prove probable cause or prove that it is more likely than not that you committed the offense. The amount of proof that is necessary is just enough to make it a 51% chance or better that you committed the offense. Typically, the prosecutor calls witnesses to the witness stand who are sworn under oath to tell the truth and they testify about what happened. You have a right as a defendant to cross-examine or ask these witnesses questions on your own. It is usually a good idea to have an attorney do this questioning for you. You also have a right as a defendant to testify at a preliminary hearing and tell your side of the story. However, many attorneys believe that it is not a good idea to have a defendant testify at a preliminary hearing. This is true because the defendant would be subject to cross-examination and would have to answer questions under oath about the offense.

After the State presents evidence on probable cause, and the defendant presents any evidence he may wish to present to show that there is not probable cause, the Judge will make a decision. If the Judge is not convinced that there is at least a 51% chance that the defendant committed the offense, the Judge is required by law to dismiss the charge. On the other hand, if the Judge believes there is at a 51% chance that the defendant committed the offense, then the Judge would bind the case to a grand jury.

The grand jury is not the same type of jury as a trial jury. A grand jury is a group of individuals who sit in a room without a Judge and hear evidence about a case to determine whether there is enough evidence to continue charging the person with the offense. If the grand jury believes that there is probable cause, they will hand down an indictment. If you are indicted by a grand jury, you will then be directed to appear in criminal court to face the charge.

Criminal court is a court of record and if you are to have a jury trial, it will take place in criminal court. At the arraignment, the Judge will determine whether you understand the nature of the charge against you and, most likely, set your case for a motion day or a trial setting. It is after this arraignment that you may file motions with the court and also seek discovery. A motion is a request to the Judge. Discovery is your right to obtain certain information that the State may have about your case. As a defendant, you are not entitled to all types of information that the State may have, but there are certain types of information that you are absolutely entitled to receive. If the State, through its prosecutors is reluctant to give you this information, your attorney may file a motion with the court telling the Judge that you are entitled to it. If a motion is filed, the Judge will make a decision and answer the motion and rule one way or the other.

If your case was neither dismissed in General Sessions Court, nor have you been able to negotiate an agreement, you have the option of going to trial. You always have an absolute right to go to trial on a criminal charge. You have a right to have the witnesses that accused you come forward and testify and you have a right to cross-examine those witnesses. You have a right to subpoena and call your own witnesses in your defense. You have a right to testify on your own behalf, if you so desire. You also have an absolute right not to testify if you so choose. No one can force you to testify and no one can mention to a jury the fact that you are not testifying if you decide you do not want to testify.

If you go to trial, you may waive a right to a jury if you and the State, through its prosecutors, can agree. If you ask for a jury trial, you will have the right to choose twelve people from the community to sit as your jury. This jury is different from a grand jury. A trial jury will decide whether or not you are guilty beyond all reasonable doubt. If you go to trial in front of a jury, you do not have to prove your innocence. The State must prove your guilt. You are presumed innocent and that presumption of innocence must remain with you unless and until the State can prove that you are guilty beyond all reasonable doubt. All twelve members of the jury must be convinced of your guilt beyond all reasonable doubt to find you "guilty." All twelve members of the jury must be convinced of your innocence to find you "not guilty."

If the jury cannot all decide whether you are guilty or innocent, in other words, if some of the jurors think you are guilty and some of the jurors think you are innocent, then you have a "hung" jury. If the Judge declares that the jury is hung, he will declare a mistrial. If a mistrial is declared in your case, the State can choose to try you again in front of another jury. If the jury says you are not guilty, then that is the end of the charge. The State can do nothing further to you on that particular charge.

If the jury determines you are guilty, you will be sentenced by the trial Judge. A jury may set a fine but the Judge sets the amount of time that you may be incarcerated or placed in jail.

If you are found guilty by a jury, you have an absolute right to appeal your case to the Tennessee Court of Criminal Appeals. You must file your appeal within a sort period of time or you will lose your right to appeal. If you appeal your case, in most situations, you will be complaining about something that was not done properly at your trial. You may also be complaining about a ruling that the Judge had made on one of your motions prior to trial. If you can convince the Court of Appeals that there was a problem with the Judge's decision or the jury trial, you may be entitled to a new trial or other relief that the Court of Appeals deems necessary and proper.

If the Court of Appeals rules against you on your appeal, you can ask the Tennessee Supreme Court to hear your appeal. This appeal is not an appeal of right and therefore the Tennessee Supreme Court can decide to hear your appeal or not hear your appeal. If the Tennessee Supreme Court declines to hear your appeal, the Court of Criminal Appeals decision becomes final.

DISCRIMINATION

What is discrimination?

Discrimination is treating people differently based on a particular characteristic. Employment discrimination occurs when an employer, or a potential employer, treats one group of individuals differently than another group because of their age, gender, race, religion, or other protected class.

Is all discrimination against the law?

No. If someone lacks the necessary skills for a particular job, an employer does not have to hire that person. Likewise, an employer can fire, or refuse to hire, someone simply because the employer does not like that person. It is also not illegal, for instance, for an employer to fire all employees who were born on a Tuesday. For the discrimination to be illegal, the employer must be discriminating on the basis of a "protected category". Title VII of the Civil Rights Act of 1964 prohibits discrimination prohibited in employment on the basis of: race, sex, religion, creed, or national original. The Americans With Disabilities Act of 1990 prohibits discrimination on the basis of disability. The Age Discrimination in Employment Act forbids discrimination of those over 40 years of age.

How do I know if I have suffered from discrimination?

You may have suffered from discrimination if you can prove each of the following:

  • You are a member of a protected class.
  • You were qualified for the job.
  • You were terminated, demoted, denied a promotion, or not hired because you are a member of a protected class; and,
  • You suffered damages as a result of the discrimination (i.e. you lost wages, suffered from emotional distress, etc.)

What matters is motive – the reason why you were fired or not hired. If you were fired or not hired because of your being a member of a protected class, it is illegal. If, however, you were fired, or not hired, because of some other reason not protected by law (e.g. the employer did not like you, or the employer hired a relative), it is not illegal.

What is a "protected class"?

A protected class is a group of people who lawmakers protect from discrimination. Today, there are several protected classes: age (those over the age of 40), sex, race, national origin, disability, creed, or religion. Some states, and even some cities, protect people from other types of discrimination. For instance, Cleveland, Ohio treats sexual orientation as a protected class. In order for a particular group of people to gain status as a protected class, a government must pass a law prohibiting discrimination against a particular group of individuals. If the category of discrimination is not spelled out in a statute, then the employee, or potential employee is not protected from that form of discrimination.

Age – discrimination on the basis of age is illegal under the Federal Age Discrimination in Employment Act of 1967 (ADEA). It outlaws discrimination in recruitment, hiring, pay, benefits, training, promotion, job retention, and other employment practices. The law only protects those 40 and older who work for employers who have at least 20 employees. Individuals under the age of 40 are not protected. So, if an employer refuses to hire someone who is 39, it is not against the law. If the employer refuses to hire someone who is forty because the employer thinks the person is too old, it is illegal.

It is not illegal to replace people who earn a lot of money with people who will make less money because they have less seniority. This usually means that older workers are replaced by younger workers. If the employer's real reason for replacing the workers is to have a younger workforce, it is illegal. If wages or salary is the real issue it is not illegal. The employee must prove that it is his or her age and not the wages which motivated the employer to fire the older workers.

Disability – the Americans With Disabilities Act (ADA) makes it illegal for employers to discriminate on the basis of a disability. For an individual to be eligible to make a claim of disability discrimination, he or she must be a "qualified individual with a disability." This means that the person must be able to do the job. For instance, if a person does not have any arms, he or she would not be qualified to be a bus driver (see below for information about "reasonable accommodation"). If the employer does not hire this person, it would not be discrimination. It would simply be that the person is not qualified for the position.

"With a disability" means that the worker is actually disabled. For an injury, ailment, disease, or other ailment to be a "disability" under the law, it must substantially limit one or more major life activities. In determining whether a person has a disability, the Courts pay close attention to whether the disability affects the person's employment or ability to earn a living.

It is also illegal to discriminate against someone who is perceived to have a disability. If the employee is not disabled, but the employer believes that he is and discriminated against him because of the disability, it is illegal.

Reasonable Accommodation – if a person is disabled and the disability makes it seem like the person cannot do the job, the employer must consider whether or not a "reasonable accommodation" can be made. A "reasonable accommodation" is when the employer modifies the job duties, provides extra help, or takes some other measure to ensure that the person can be able to do the job. For example, a person in a wheelchair wants to work for a company who has an office on the second floor of a small building. To accommodate the worker, the company could install an elevator; however, it is probably not reasonable to expect an employer (particularly a small business) to spend that kind of money. There could be other possibilities, however. For instance, if most of the work is done on the telephone selling products, the work could be done from home. It may be reasonable to ask the employer to do the work at home.

Sex Discrimination – Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex for employers with 15 or more workers. When employers treat employees differently on the basis of sex and the discrimination affects the "terms and conditions of employment", it is illegal. "Terms and conditions of employment" means almost anything related to someone's job: title, pay, hours, benefits, etc. There are two types of sex discrimination: disparate impact and disparate treatment.

Disparate Treatment – is straightforward discrimination. For instance, all men are given 11 paid vacation days per year whereas women with the same title are only given 10 vacation days per year.

Disparate Impact – is a more subtle form of discrimination. The company policy appears neutral on its face, however, when it is applied it affects certain individuals differently. The company policy may not have been designed to affect the individuals, it may have been an unfortunate result, but it is nonetheless illegal. For example, fire departments require their job applicants to satisfy certain strength requirements. Women are less likely to meet such requirements than men. In some instances the requirements are necessary but in other instances, the requirements are simply too high. Therefore, qualified women are being excluded. The fire departments may not have set the requirements at those levels to specifically exclude women – that result may have occurred because of their policy. The policy had a disparate impact upon women. Because the policy was not sufficiently job related (too much strength required) there was discrimination.

Sexual Harassment – is a form if sex discrimination that violates Title VII of the Civil Rights Act of 1964. There are two types of sexual harassment:

Quid pro quo sexual harassment occurs when the harasser asks his or her employee to submit to sexual advances in exchange for the employee keeping or advancing in his or her job. Quid pro quo harassment originates from a supervisor or an employee with authority over the victim. For example, a supervisor telling an employee that she will be fired if she does not sleep with the supervisor.

Hostile environment – sexual harassment occurs when the unwanted conduct is of a sexual nature and it is continuous and frequent which makes the work place intimidating, hostile, or offensive to the victim. For instance, lewd jokes, sexual comments, displays of suggestive material, verbal or physical conduct of a sexual nature, or repeated and insistent requests for dates may constitute a case for "hostile environment" harassment. This type of harassment need not originate from a supervisor but may originate from a co-worker or other person whom the victim encounters at work. For example, at a company meeting a male employee sends a female employee to retrieve a document from a specific drawer in his desk. When she opens the drawer, she finds pornographic magazines and no "official documents." A single, isolated incident would not rise to the level of sexual harassment deemed illegal under the law. Title VII was not "designed to purge the workplace of vulgarity." The occasional use of obscene language does not make a hostile workplace, Title VII was intended to protect against a pattern or practice of discrimination. Title VII seeks to protect certain individuals from continuous harassing acts on many occasions which affect the employee's work performance or which create a hostile or offensive environment for the employee.

Other factors to consider in sexual harassment charges: The harasser's conduct must be unwelcome. Did the claimant indicate by her conduct that the sexual advances were unwelcome? A claimant's provocative dress or speech is not necessarily irrelevant. Evidence regarding a claimant's conduct in the workplace, including her history of engaging in sexual banter, horseplay and jokes, coarse language, or her voluntary and open sex with co-workers is relevant and can defeat a claim for sexual harassment.

The claimant must inform either a manager or the appropriate department  about the unwelcome behavior.

Sexual harassment must rise to the objective level of harassment that a "reasonable person" would find offensive. The "reasonable person" test consists of:

  1. Frequency of the conduct
  2. Severity of the conduct
  3. Whether the conduct was physically threatening or humiliating
  4. Whether the conduct interferes with an employees work performance.

The victim as well as the harasser may be a man or a woman. Also, the victim does not have to be of the opposite sex.

An employer is liable for hostile environment harassment only if the employer knew or should have known about an employees acts of harassment and fails to take appropriate remedial action.

The employer must have actual or constructive knowledge of the harassment. Actual knowledge, for example, is a complaint made in accordance with the corporation's sexual harassment policy. Constructive knowledge, for example, is harassment that is so pervasive, open, and notorious that the company's management (and not low level supervisors), should have had knowledge of the particular harassment suffered by a particular claimant.

Race Discrimination – is much like sex discrimination except it is discrimination based upon one's race. Title VII of the Civil Rights Act of 1964 also protects individuals against employment discrimination on the basis of race or color. It is illegal for an employer to discriminate against an employee or potential employee because of his or her race or color with regards to hiring, firing, salary, promotion, or any other term or condition, or privilege of employment. Title VII prohibits both intentional discrimination (disparate treatment) and neutral job policies that disproportionately exclude minorities and that are not job related (disparate impact).

Ethnic slurs, racial "jokes," offensive or derogatory comments, or other verbal or physical conduct based on an individual's race/color constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the employee's work performance (see hostile environment sexual harassment above).

Employers can also violate Title VII if they segregate their work force by physically isolating racial minorities from other employees or from customer contact. Title VII also prohibits assigning primarily minorities to predominantly minority establishments.

How long do I have to file a discrimination claim?

A charge of discrimination must be filed with the Equal Employment Opportunity Counsel (EEOC) within 180 from the date of the discrimination; however, some states permit 300 days. You should move forward with your charge as soon as possible because evidence and memories fade. Furthermore, a discrimination claim takes a long time to resolve. The typical case can take two years or longer.

How do I prove that I have been discriminated against?

  1. The employee must show that he or she is a member of a protected class.
  2. The employee must show that he or she suffered an adverse employment action. An adverse employment action is anything the employer does which impacts the employee negatively, such as their position, pay rate, title, hours, vacation, benefit package, etc.
  3. The employee should then ask the employer the reason for the employment action. For instance, a woman is fired and she thinks the employer fired her because he is sexist. The employer may tell the woman that she was not fired because she is a woman, but she was fired because the company is downsizing. Just because a person is member of a protected class does not mean that they can never be fired. The law prohibits employers firing employees simply because the employee is a member of a protected class.
  4. The employee then has the opportunity to prove that the employer's proffered reason for the firing was not the legitimate reason that the employer articulated. For instance, the employee might be able to demonstrate that her position was not eliminated, and that on the same day she was fired, someone was hired to replace her.
  5. Merely proving that the employer's actual reason for firing the employee was not the legitimate reason is not enough. The employee must have present evidence that she was fired because she was a woman.

Proving discrimination can occur in a variety of ways. Employers will rarely admit that they discriminate against a particular group of people; however, there may be evidence of discrimination. Direct evidence includes:

  • The employer, or other employees, may have made disparaging remarks, or slurs, that your co-workers may have overheard.
  • The employer may have inadvertently admitted their discriminatory outlook (e.g. "women don't belong in construction crews.")
  • The employer, or other employees, may make "jokes" about particular groups of people that are protected classes.

There may also be indirect evidence:

  • Disproportionate statistics (all executives are male, only workers over age 55 are laid off, or only African Americans are hired. Statistics can be very useful. For instance, an African American man applies for a job that he is very well qualified for. The company does not hire him but hires a Caucasian man who is not nearly as qualified. The company may state that they did not hire the African American man because they did not like him at the interview. That is a legitimate reason for not hiring someone. If the African American man can show that many or only Caucasian men have been given the position and few or no African Americans have held the position, he might be enough evidence to prove racial discrimination if the numbers are good enough.
  • There may have been other, past cases of discrimination within the company.
  • Employer may provide false reasons for particular employment decisions to cover up the discrimination.
  • People who are not members of the protected class are treated better even though they only have equal or lesser qualifications.

The Appeal Process

If you find yourself involved in criminal or civil litigation then you may end up in a trial. Your trial could be decided by a jury or, in some cases, by a judge. At the end of the trial the jury or the judge will render a verdict and a judgment will be entered in your case. If you are dissatisfied with the results of a trial, in almost all cases you have an absolute right to file an appeal.

An appeal is a formal document stating that you disagree with what happened at the trial. In Tennessee, in the case of civil trials, an appeal is normally filed with the Tennessee Court of Appeals. An appeal from a state criminal trial would be filed in the Tennessee Court of Criminal Appeals. An appeal is not a rehearing nor a retrying of the facts of the case. An appeal basically tells the Appeals Court about the facts that were presented at trial and makes an argument that based on what happened at the trial, or, in some cases, what did not happen at the trial, is a reason for either a retrial or some other relief. Normally, it is the party that loses at trial that files the appeal. Once an appeal is filed the other side has a right to respond and file papers arguing against the appeal.

Either party involved in an appeal can ask for oral argument. After the papers are filed by both sides to the appeal, and if oral argument is requested and granted, the Court of Appeals will assemble a panel of appellate judges to hear oral argument. Oral argument is very helpful to the Appellate Court in most cases. This is an opportunity for the attorneys representing the parties in the appeal to explain to the Court of Appeals why their client's appeal should or should not be granted. The appellate judges very often ask questions of the attorneys. However, in most cases, no new evidence is presented to the Appellate Court. The Appellate Court only review the evidence that was presented in the trial court.

After oral argument is presented to the Appellate Court, the court will render an opinion and rule on whether there was any problem with the trial or whether the trial judgement should be changed or be affirmed. The Appellate Court renders a written opinion and many times the opinion will be published in the official books containing court cases.

The appellate process in State Court is very similar to the appellate process in Federal Court. Both the State and Federal Court systems grant a losing party the right to appeal the trial judgement.

If the losing party does not like the opinion of the Court of Appeals, then a further review or appeal is sometimes possible. If the Court of Appeals rules against you after hearing the appeal, you have the opportunity to ask the Supreme Court to hear the case. This is done by filing a petition for certiorari to the Supreme Court. Both the State of Tennessee and the Federal Court system allow the request for a hearing by the Supreme Court of either the State or the Federal system. However, the Supreme Court has discretion and does not have to grant a hearing. If the Supreme Court denies the request then the ruling of the Court of Appeals is the final outcome of the case. Typically, very few cases are accepted by the Supreme Court for review.

If you contemplate going to trial and are discussing and looking for an attorney to represent you, or defend you, you should discuss with the attorney at the beginning of the representation the appellate process. Find out how the attorney charges in the event of an appeal and any other costs that may be involved in going further that a trial in your case.

 

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