Nashville, Tenn. – In a case filed in Hamilton County, the Tennessee Supreme Court today held that Tennessee law does not prohibit a private employer from firing an employee for exercising the right to petition the government granted under the Tennessee Constitution.
The case began in 2021, during the global COVID-19 pandemic. Plaintiff Heather Smith was employed by BlueCross BlueShield of Tennessee, Inc., a private corporation. When BlueCross required its employees to get a COVID-19 vaccine, Ms. Smith chose to not get vaccinated. She emailed members of the Tennessee legislature, expressing grievances about BlueCross’s vaccination mandate. BlueCross warned Ms. Smith that her email violated company policy. When Ms. Smith sent a second similar email to legislators, BlueCross terminated her employment.
Ms. Smith filed a lawsuit against BlueCross in the Hamilton County chancery court, alleging that BlueCross violated Tennessee law by firing her for exercising the “right to petition” the government under the Tennessee Constitution. The trial court dismissed her lawsuit, but the Court of Appeals reversed. The Tennessee Supreme Court then granted BlueCross permission to appeal.
In very limited circumstances, the Court explained, it may violate Tennessee law for an employer to fire an employee for exercising a constitutional right. This is called “retaliatory discharge.” Tennessee’s Constitution grants citizens a “right to petition” their government. Ms. Smith argued that she was a victim of “retaliatory discharge” for exercising the “right to petition” in the Tennessee Constitution.
The Tennessee Supreme Court reviewed the history of the constitutional right to petition, going back to England before the founding of the United States. It observed that the right to petition had always been understood to forbid the government from retaliating against citizens who petition the government. It had not been applied against those not in the government. The Court said: “For hundreds of years, the constitutional right to petition has been considered a bulwark against government oppression, not a constraint on private parties.”
The Court then held that the right to petition in the Tennessee Constitution is enforceable only against the government, not private actors. Consequently, Tennessee law does not prohibit a private employer from firing an employee for exercising the right. The Court affirmed the trial court’s dismissal of the lawsuit.
Justice Sarah Campbell concurred but wrote a separate opinion. She argued that the legislature is better suited than the Court to create public-policy exceptions to the employment-at-will doctrine and suggested that the Court consider in an appropriate case whether to leave the development of further exceptions to the legislature.
To read the majority opinion in Smith v. BlueCross BlueShield of Tennessee, authored by Chief Justice Holly Kirby, click here. To read Justice Campbell’s separate opinion, click here.