Tenn. Comp. R. & Regs. 1500-01-02-.01 - PRACTICE AND PROCEDURE

(1) Definitions. When used in this regulation:

(a) "Act" includes the Tennessee Human Rights Act, Tennessee Code Annotated (T.C.A.), Title 4, and Chapter 21, and the Tennessee Handicap Act, Tennessee Code Annotated, Title 8, Chapter 50, Section 103.

(b) "Administrative Determination" means the determination reached by the Commission pursuant to the investigative findings made, and legal conclusions drawn, following an investigation under the Act.

(c) "Chairman" means the duly elected Chairman of the Tennessee Human Rights Commission or, in the event of his or her absence or inability to act, the Vice-chairman, who has been designated by the Commission, or if such Vice-chairman is unable to act, a Commissioner designated by the Commissioners.

(d) "Commission" means the Tennessee Human Rights Commission.

(e) "Commissioner" or "Commissioners" mean any person appointed by the Governor to serve on the Commission.

(f) "Complainant" means the person by whom or on whose behalf a complaint is filed.

(g) "Discriminatory Practice" means any direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice which constitutes different treatment or preference of a person or persons based on race, creed, color, religion, sex, age, national origin, or handicap.

(h) "Employer" includes the state, or any political or civil subdivision thereof, any person employing eight (8) or more persons within the state, or any person acting as an agent of an employer, directly or indirectly;

(i) "Employment agency" means any person or agency, public or private, regularly undertaking, with or without compensation, to procure employees for an employer or to procure for persons opportunities to work for an employer.

(j) "Executive Director" means the individual appointed by the Commissioners pursuant to Commission bylaws as the administrative head of the Commission. The Executive Director shall be empowered with the authority to appoint the necessary professional, technical, and clerical staff, which shall be covered by and subject to the provisions of the rules and regulations, to carry out the provisions of the Act and these rules. Any powers vested in the Executive Director, and any duties imposed upon him or her by the Act or these rules and regulations, may be exercised or discharged by the Executive Director or the Executive Director's designee in his or her absence. In the event the Executive Director becomes incapacitated to the extent that he or she can no longer perform his or her duties, such duties may be performed by the Deputy Director, or, in the absence of the Deputy Director, a designee selected by the Executive Director before incapacitation.

(k) "Financial institution" means a bank, banking organization, mortgage company, insurance company or other lender to whom application is made for financial assistance for the purchase, lease, acquisition, construction, rehabilitation, repair, maintenance or improvements of real property, or an individual employed by or acting on behalf of a financial institution.

(l) "Handicap" means, with respect to a person:

1. A physical or mental impairment that substantially limits one (1) or more of such person's major life activities;

2. A record of having such an impairment; or

3. Being regarded as having such an impairment.

4. "Handicap" does not include current, illegal use of, or addiction to, a controlled substance.

(m) "Hearing examiner" means one (1) or more persons or Commissioners, designated by the Commission to conduct a hearing. The Commission has the sole power to determine qualifications of the hearing examiner.

(n) "Housing accommodation" includes improved and unimproved property and means a building, structure, lot or part thereof that is used or occupied, or is intended, arranged or designed to be used or occupied, as the home or residence of one (1) or more individuals.

(o) "Investigator" shall mean a member of the Commission staff designated by the Executive Director, or an approved contractor designated by the Executive Director, empowered to investigate the allegations of a complaint.

(p) "Labor organization" includes any organization that exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or for other mutual aid or protection in relation to employment or any agent acting for a labor organization.

(q) "National origin" includes the national origin of an ancestor.

(r) "No Reasonable Cause" means that after an investigation, the Commission has determined that the respondent has not engaged in a discriminatory practice. Such determinations will be made using the standards set forth in the policies, regulations, statutes, and our contracts with the United States Equal Employment Opportunity Commission (EEOC) and the United States Department of Housing and Urban Development (HUD).

(s) "Person" or "Persons" includes one (1) or more individuals, governments, governmental agencies, public authorities, labor organizations, corporations, legal representatives, partnerships, associations, trustees, trustees in bankruptcy, receivers , mutual companies, joint stock companies, trusts, unincorporated organizations or other organized groups of persons.

(t) "Places of public accommodation, resort or amusement" includes any place, store or other establishment, either licensed or unlicensed, that supplies goods or services to the general public or that solicits or accepts the patronage or trade of the general public, or that is supported directly or indirectly by government funds, except that:

1. A bona fide private club is not a place of public accommodation, resort or amusement if its policies are determined solely by its members; and

2. Its facilities or services are available only to its members and their bona fide guests.

(u) "Real estate broker" or "real estate salesperson" means an individual, whether licensed or not, who, on behalf of others, for a fee, commission, salary, or other valuable consideration, or who with the intention or expectation of receiving or collecting the same, lists, sells, purchases, exchanges, rents or leases real estate, or the improvements thereon, including options, or who negotiates or attempts to negotiate on behalf of others such activity; or who advertises or holds such individual out as engaged in such activities; or who negotiates or attempts to negotiate on behalf of others a loan secured by mortgage or other encumbrance upon a transfer of real estate, or who is engaged in the business of charging an advance fee or contracting for collection of a fee in connection with a contract whereby such individual undertakes to promote the sale, purchase, exchange, rental, or lease of real estate through its listing in a publication issued primarily for such purpose; or an individual employed by or acting on behalf of a real estate broker or salesperson.

(v) "Real estate operator" means any individual or combination of individuals, labor unions, joint apprenticeship committees, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees in bankruptcy, receivers or other legal or commercial entities, or the county or any of its agencies, that is engaged in the business of selling, purchasing, exchanging, renting or leasing real estate, or the improvements thereon, including options, or that derives income, in whole or in part, from the sale, purchase, exchange, rental or lease of real estate; or an individual employed by or acting on behalf of a real estate operator.

(w) "Real estate transaction" includes the sale, exchange, rental or lease of real property.

(x) "Real property" includes buildings, structures, real estate, lands, tenements, leaseholds, cooperatives, condominiums, and hereditaments, corporeal and incorporeal, or any interest in these.

(y) "Reasonable Cause" means that after an investigation, the Commission has determined that the respondent has engaged in a discriminatory practice. Such determinations will be made using the standards set forth in the policies, regulations, statutes, and our contracts with the United States Equal Employment Opportunity Commission (EEOC) and the United States Department of Housing and Urban Development (HUD).

(z) "Respondent" means the person, employer, employment agency, labor organization, housing providers, real estate brokers, salespersons or operators, financial institutions, and persons owning or operating places of public accommodation, resort or amusement against whom a complaint is filed.

(aa) "Sex" means and refers only to the designation of an individual person as male or female as indicated on the individual's birth certificate.

(bb) "Verified" means sworn to or affirmed before a notary public, or supported by a declaration in writing under penalty of perjury.

(2) Complaint. Who may file:

(a) Any individual claiming to be aggrieved by a discriminatory practice or about to be injured by a discriminatory practice, may, individually, or through his or her authorized representative, make, sign, and file with the Commission a written verified complaint. Assistance in drafting and filing complaints, including language interpretation, shall be available to complainants at the Commission's offices or from any Commission staff member who has been duly authorized to do so by the Executive Director. A person who is incompetent of filing for oneself or a person who has not attained eighteen (18) years of age must file through a legal parent, legal guardian or legal custodian.

(b) A Commissioner may also make and file a written verified complaint.

(c) Upon receiving a complaint submitted by the United States Equal Employment Opportunity Commission (EEOC) or the United States Department of Housing and Urban Development (HUD), the Executive Director, or his or her designated representative, acting in the name of the Commission, may issue a verified complaint in writing and attach thereto the materials, if any, submitted by the federal government.

(3) Complaint Form. The complaint shall be in writing and verified. The Commission shall make available to the public a standardized complaint form upon request. The complaint shall contain the following:

(a) The full name and address of the complainant.

(b) The name and address of the person, employer, labor organization, employment agency, government agency, place of public accommodation, real estate broker, salesperson or operator, or financial institution against whom the complaint is made.

(c) A short and plain statement of the claim showing that the complainant is entitled to relief under the Tennessee Human Rights Act.

(d) The dates and times of the alleged discriminatory practice, if known, and, if the alleged discriminatory practice is of a continuing nature, the dates between which those continuing acts of discrimination are alleged to have occurred, if known.

(e) A statement as to whether any action, civil or criminal, instituted by the complainant in any other forum, based upon the same grievance as is alleged in the complaint, has been instituted, together with a statement as to the status or disposition of such other action.

(f) The Complainant is responsible for keeping the Commission informed of any changes in his or her contact information.

(4) Time of filing complaint. A complaint alleging discrimination must be filed within one hundred eighty (180) days after the alleged discriminatory practice occurs. If the alleged discriminatory practice is of a continuing nature, the date of occurrence is the date of the last discriminatory act, or the date of which the complaint shall have been filed if the discriminatory practice continues.

(5) Place of filing complaint. A complaint may be filed with the Commission at any of the Commission's offices.

(6) Manner of filing complaint. A complaint may be filed by personal delivery, express delivery, ordinary mail, registered mail, certified mail, or electronic facsimile. The original copy of a complaint filed by electronic facsimile shall be physically delivered to the Commission within ten (10) business days of electronic transmission.

(7) Amendment of complaint. The Commission, the presiding hearing examiner, or the complainant may reasonably and fairly amend a complaint, subject to the following limitations:

(a) The power to amend a complaint may be exercised before the issuance of a notice of filing by the Commission's staff with the consent of the complainant, and after the issuance of a notice of filing by the presiding hearing examiner upon motion by the Commission.

(b) The power to amend a complaint may be exercised before the issuance of a notice of filing by the complainant as a matter of right, and after the issuance of a notice of filing at the discretion of the presiding hearing examiner if he or she determines such amendment serves the interest of justice.

(c) A complaint may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original complaint will relate back to the date the complaint was first received.

(8) Substitution and Addition of Parties.

(a) A complaint may be amended by the complainant to substitute or name additional parties as respondent(s) if such parties are successors or assigns of a named respondent. Mere misnomer of a party shall not be grounds for dismissal and may be cured at any time by amendment of the complaint. A person may be added as party respondent, even if that person is not a successor or an assignee of the named respondent, if the following terms and conditions are met:

1. The charge in the case was filed within one hundred eighty (180) days of the date of the discriminatory practice allegedly committed by the person sought to be added as a party respondent;

2. The failure to join the person as a party respondent was inadvertent;

3. The person sought to be added as a party respondent was given notice of the filing of the charge at the time the original charge was filed;

4. The nature of the original charge was such that the person sought to be added knew, within the one hundred eighty (180) day period, that the charge grew out of a transaction or occurrence involving or concerning him, her or it;

5. The addition of the person sought to be named as a party respondent does not raise new factual questions which were not considered by the Commission in its investigation; and

6. The cause of action alleged against the person sought to be made a party respondent in the case arises out of the same transaction or occurrence set out in the original complaint.

(b) If a party to a complaint dies, the proper party or parties may be substituted upon motion to the Commission. If a motion to substitute is not filed within ninety (90) days after the death is suggested of record, the complaint may be dismissed as to the deceased party.

(c) No party shall be added as a party respondent except as provided in this section.

(9) Postponement of Hearing Date. If a complaint is amended after a reasonable cause finding, a hearing date postponement may be granted to the respondent upon request to the hearing examiner. In no event shall such hearing date be more than ten (10) days later than the original hearing date.

(10) No Reasonable Cause determination. If it is determined that there is no reasonable cause to believe that the respondent has engaged in a discriminatory practice, the Commission, Executive Director, or a Commission staff member designated by the Executive Director, shall furnish a copy of the determination letter to the complainant, the respondent, and such public officers and persons as the commission deems proper.

(11) Reasonable Cause determination. If it is determined that there is reasonable cause to believe that the respondent has engaged in a discriminatory practice, the Commission, Executive Director, or a Commission staff member designated by the Executive Director, shall furnish a copy of the determination letter to the complainant and the respondent, and shall specifically name the statute(s) deemed to have been violated.

(12) Withdrawal of complaint. Upon the written request of the complainant or the complainant's representative, stating the reasons for such a request, a complaint, or any part thereof, may be withdrawn, subject to approval by the Commission. Such withdrawal shall be without prejudice to the rights of the complainant. A withdrawn complaint may be re-filed, provided such filing occurs within one hundred eighty (180) days of the discriminatory act originally alleged.

(13) Dismissal of complaint. The Commissioners, the Executive Director, or a Commission staff member designated by the Executive Director, may dismiss a complaint at any time, for reasons including, but not limited to, lack of probable cause, lack of jurisdiction, or lack of complainant cooperation, whether upon the face of the complaint, after investigation, or after conference, conciliation and persuasion. If a complaint is dismissed, the Executive Director, or a Commission staff member designated by the Executive Director, shall notify the parties by mail of such determination and of the complainant's right to apply to the Commission for reconsideration of such dismissal. In any dismissed case that is dual-filed with either EEOC or HUD, the Commission shall refer the complaint to the appropriate federal agency for investigation. In housing cases in which the respondent claims an exemption under T.C.A. § 4-21-602(a)(1) and (2) for property occupied by a family member, the Commission will forward such complaints to HUD for appropriate action.

(14) Reconsideration of complaint.

(a) The complainant, within thirty (30) days after receiving a copy of the order dismissing the complaint, may file with the Commission an application for reconsideration of the order. Such application must be in writing and must specifically state the grounds upon which it is based. Grounds for reconsideration shall include, but not be limited to, the production of new evidence; evidence not properly considered during the investigation; or evidence obtained from new witnesses.

(b) Upon receipt of an application for reconsideration, a Commissioner, the Executive Director, or a Commission staff member designated by the Executive Director shall reconsider the complaint. The Executive Director may designate a different investigator to initiate a new investigation of the complaint. If a new investigation is conducted, the investigator may consider the evidence gathered in the initial investigation. The Commission shall, within thirty (30) days, make a new determination of no reasonable cause or reasonable cause.

(c) Dismissal of a complaint may be reconsidered by the Commission on its own initiative at any time within thirty (30) days after such dismissal. Notice of such reconsideration shall be provided by the Commission to all parties to the complaint.

(15) Nature of discriminatory practice notices and who must post. Every employer, employment agency, labor organization, real estate broker, salesperson, or operator, and financial institution subject to Tennessee Code Annotated, Title 4, Chapter 21 and Tennessee Code Annotated, Title 8, Chapter 50, Section 103, hereinafter referred to as the Tennessee Human Rights Act, and Tennessee Handicap Act, or Act, shall post and maintain at their establishments fair employment practice notices and/or fair housing practice notices furnished by the Tennessee Human Rights Commission indicating the substantive provisions of the Tennessee Human Rights Act, where complaints may be filed, and such other information as the Tennessee Human Rights Commission deems pertinent.

(16) Where employers, employment agencies, real estate brokers, salespersons, or operators, and financial institutions must post. With respect to employers and employment agencies, such notices must be posted conspicuously in easily accessible areas frequented by employees and applicants for employment, and at or near each location where the employees' services are performed. With respect to real estate brokers, salespersons, or operators, and financial institutions, such notices must be posted conspicuously in areas frequented by residents and individuals seeking housing opportunities.

(17) Where labor organizations must post. With respect to labor organizations, such notices must be posted conspicuously in easily accessible and well-lighted places customarily frequented by members and applicants for membership.

(18) Affirmative action plans. An affirmative action plan filed with the Commission pursuant to T.C.A. § 4-21-406(b) that has not been approved in writing within ninety (90) days of its filing with the Commission shall be deemed to be disapproved by the Commission. The Commission shall publish and shall make available upon request guidelines for evaluating or developing such plans.

(19) Complaints alleging violations of Title VI of the Civil Rights Act of 1964. Parties who wish to file a complaint against the Commission for violation of Title VI of the Civil Rights Act of 1964, 42 USC § 2000d, or T.C.A. § 4-21-904, should direct such complaints to the United States Department of Housing and Urban Development Fair Housing and Equal Opportunity Office or the United States Equal Employment Opportunity Commission.

Notes

Tenn. Comp. R. & Regs. 1500-01-02-.01

Original rule filed November 15, 2010; effective February 13, 2011. Amendments filed March 23, 2012; effective June 21, 2012.

Authority: T.C.A. §§ 4-21-102, 4-21-302, 4-21-406, 4-21-602, 4-21-904, 4-21-905, and 8-50-103.