Under the Arkansas Civil Rights Act are human beings persons?

The Arkansas Civil Rights Act (“ACRA”), defines an employer as “a person who employs nine (9) or more employees in the State of Arkansas in each of twenty (20) or more calendar weeks in the current or preceding calendar year, or any agent of such person.” A.C.A. § 16-123-102 (5). This particular definition has never been reviewed by either the Arkansas Court of Appeals or the Arkansas Supreme Court.

However, the Arkansas Supreme Court has reviewed the definition of the word “person” finding that this word means human being and thus human beings can be held individually liable for violations of provisions of the ACRA. Calaway v. Practice Management Services, Inc., 2010 Ark. 432 at *4. Unfortunately, the federal courts in Arkansas appear to be at odds with the Arkansas Supreme Court on this interpretation of Arkansas state law.

Over twenty years ago, the Eighth Circuit misinterpreted a Missouri state law very similar to the ACRA. In that case, the Eighth Circuit held that individuals were not liable under that state’s laws for violations of the Missouri Human Rights Act even though the Act specifically provided for individual liability. Lehnhardt v. Basic Institute of Technology, Inc. 55. F.3d 377, 381 (1995). The Missouri Court of Appeals rebuked this holding in a later opinion which held, “We find that the plain and unambiguous language within the definition of ‘employer’ under the MHRA imposes individual liability in the event of discriminatory conduct.” Cooper v. Albacore Holdings, Inc., et. al., 204 S.W.3d 238, 244 (Mo. App. E.D. 2006).

Utilizing Lehnhardt, the federal courts of Arkansas have consistently held that since Title VII does not provide for individual liability, then there is no liability under the ACRA either. Morrow v. City of Jacksonville, Ark., 941 F.Supp. 816, 820 (E.D. Ark. 1996); Evans v. AutoZone Stores, Inc., 2008 WL 697752 at *5 (W.D. Ark. Mar. 13, 2008) (citing to both Lehnhardt and Morrow as authority); Richardson v. City of Pine Bluff, Ark., 2006 WL 3388341 at *1 (E.D. Ark. Nov. 21, 2006) (citing to both Lehnhardt and Morrow as authority). These rulings do not appear to consider the Arkansas Supreme Court ruling in Calaway or the Missouri Court of Appeals rejection of the Eighth Circuit’s interpretation of “employer”in Cooper.

It is my hope that this issue will finally be resolved here in Arkansas by a federal judge either certifying this question to the Arkansas Supreme Court or reviewing the Lehnhardt case in light of both Callaway and Cooper to come to the conclusion that the Arkansas law means what it says — individuals are liable under the ACRA even though they are not liable under Title VII. Failing to do this will result in more Plaintiff’s abandoning protections under federal law in order to ensure proper interpretation of Arkansas state law in the state courts.

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Does the Tennessee Human Rights Act protect against sexual orientation discrimination?

If you read my post below about the Arkansas Civil Rights Act, you can already guess where I am likely going with this post, but there is a serious exception.  In Tennessee, the state courts do not necessarily follow federal Title VII interpretation with regard to Tennessee’s similar Human Rights Act; however, the Tennessee Supreme Court will seriously consider such interpretations of law to “maintain continuity between state and federal law.”  Allen v. McPhee, 240 S.W.3d 803, 812 (Tenn. 2007).  This is a bit less of an endorsement of federal interpretations of Title VII than what is found in Arkansas, but it still results in serious deference at the state level to federal interpretation of the federal law and, as a result, the Human Rights Act.  As such, if a federal court in Tennessee or the Sixth Circuit (and to a lesser extent in some other circuit) were to interpret Title VII as protecting against sexual orientation discrimination, the Tennessee Human Rights Act could arguably be used for those same protections at the state level.

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Does the Arkansas Civil Rights Act protect against sexual orientation discrimination?

This is a controversial question that has not yet been taken up by the Arkansas Supreme Court since the Equal Employment Opportunity Commission made it clear that it would begin investing sexual orientation discrimination claims as sex discrimination claims under Title VII of the Civil Rights Act of 1964 in it February 2015 filed memo found here.  Even though the Court has not yet taken this up this issue, the Arkansas Supreme Court has repeatedly made it clear that it uses interpretations of Title VII in order to interpret Arkansas’ own Civil Rights Act as the two acts are so closely related.  If a federal court in Arkansas or within the Eighth Circuit (and to a lesser extent elsewhere) specifically agrees with the EEOC’s interpretation of sexual orientation discrimination under Title VII, it would conceivable lead to full coverage from such discrimination under the Arkansas Civil Rights Act as well.

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FMLA Interference – Third Circuit finds FMLA rights exist even without serious health condition

Yesterday, in Hansler v. Lehigh Valley Hospital Network, the Third Circuit held that even when FMLA paperwork is incomplete or does not contain a listed serious health condition, interference with a person’s FMLA rights can occur under 29 C.F.R. § 825.305(c) when the employer does not seek clarification of the missing information.  There is a blistering dissent that makes the argument that this creates a loophole in the FMLA regulations.  You can read more about it at on Eric Meyer’s excellent blog “The Employer Handbook” here or by reading the entire case here.

 

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Welcome to Scurlock Law!

Scurlock Law is intended to be a blog site that will include important trends in contract, employment, and civil rights law from around the country with a special emphasis on legal trends in Arkansas, Tennessee, and Mississippi as well as the Courts of Appeal in the Fifth, Sixth, and Eighth Circuits.  As time goes on, I may expand the scope of this blog to focus on additional geographic areas of the country as well as other areas of law.

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