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Proposed legislation would create a protected class in the workplace — gun owners

Have Gun, Will Litigate

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In the months following the controversial shooting death of Trayvon Martin, the National Rifle Association is doubling down on state-level legislation that would afford more legal protections to gun owners like Martin's alleged killer, neighborhood watchman George Zimmerman, than to minorities like Martin, the unarmed African-American teenager he is accused of shooting.

As scrutiny mounts on the role that the NRA-supported "Stand Your Ground" law continues to play in the Martin slaying, state legislatures in Maine, Alabama, Missouri and Tennessee are busily working to pass bills written by the nation's preeminent gun lobby that would prohibit employers from discriminating against employees on the basis of gun ownership.

Nowhere is the NRA's naked ambition more visible than in the Volunteer State, home to the infamous "guns in bars" law and a "Castle Doctrine" law enacted in 2007 akin to Florida's "Stand Your Ground." Two Tennessee state legislators have sponsored an NRA-drafted bill dubbed the "Employee Protection Bill" by the NRA's lobbying arm, the Institute for Legal Action. If passed, legal experts say, it would turn gun owners into a protected class with rights far beyond those that, say, GLBT employees were seeking in Metro's overturned workplace-protection ordinance.

Filed by Republican Sen. Mike Faulk in the Senate and Democrat Rep. Eddie Bass in the House, the proposed SB 2992/HB 3559 would permit supposed victims of firearm-based discrimination to bring civil action against a public or private employer, if that employer requires the victim "to disclose information about whether the applicant or employee owns, possesses, uses, or transports a firearm or ammunition" that is not integral to their job.

In other words, gun owners can sue if their employers demand that they disclose their gun ownership. But the bill doesn't stop there. The proposed legislation would also make it illegal for an employer to withhold or terminate "employment, or any rights, benefits, privileges or opportunities offered by the employment" because of gun ownership. If the bill passes, and you're a Tennessee permit holder who carries his weapon onto company property, they'll have to pry the dental benefits from your cold, dead fingers — and you'll come away with grounds for a lawsuit.

Indeed, SB 2992 could yield a trial lawyers' feeding frenzy. If they believe they were fired for owning a gun — or if an attorney thinks he can make that argument stick — employees will be able to sue for punitive and non-economic damages, court costs and attorneys' fees, without caps to limit how large those awards might be. For what it's worth, Faulk received $14,000 from the Tennessee Trial Lawyers Association between 2008 and 2010, and Bass received $8,000 in the same period, according to campaign finance data compiled by the Sunlight Foundation.

In a General Assembly session that has seen the passage of anti-evolution laws and anti-camping bills aimed at the Occupy Nashville movement, the Faulk and Bass bills have cleared their respective committees by wide margins in the Republican-dominated state government. As of press time, the bills have been scheduled for review over the summer.

Calls to Faulk's and Bass' offices were not returned by press time. But in a press release sent out in February announcing his support of the NRA legislation, Faulk said "the bills will prevent employers from discriminating and enforcing policies against the storage of lawfully owned firearms in employees' private motor vehicles." He added, "I'm humbled to be asked by the NRA to be its Senate sponsor for this significant legislation."

Yet instances of workplace discrimination against gun owners are rare, to say the least. In her Feb. 21 testimony to the state Senate's Commerce, Labor and Agricultural Committee, NRA lobbyist Heidi Keesling cited a 2002 incident in which 12 employees were fired at a Weyerhaeuser pulp and paper facility in Valliant, Okla., after a random parking lot check turned up multiple firearms in violation of a new company policy. Not exactly Bull Connor's fire hoses, but you get the picture.

Opponents of the bill say the irony here is obvious: The same GOP-controlled state government that worked to prevent medical-malpractice victims from collecting too much money now says gun owners can't collect enough.

"It's astonishing that the same Republican-led legislature that has passed tort reform to supposedly create jobs in Tennessee is now legislating a whole new type of litigation for gun owners, despite the fact that business owners across Tennessee have made it clear that this type of legislation only hurts business," says David Garrison, an attorney with the civil rights firm of Barrett Johnston who specializes in employment discrimination.

"Given that the Tennessee legislature is only one of five state legislatures in the country that has not legislated a minimum wage for workers in its state, it's remarkable that these legislators believe it's necessary to create statutory employment rights for gun owners but not for all Tennessee workers, especially when business owners in our state have made it clear that this type of legislation is simply bad for business," Garrison adds.

In state Commerce, Labor and Agriculture Committee hearings, Faulk describes the bill as companion legislation to another NRA bill, whose provisions are known collectively as "Safe Commute" laws. Tennesseans know the companion bill by another name: The so-called "Guns in Parking Lots" bill, aka SB 3002, also sponsored by avowed NRA member Faulk. SB 3002 would make it illegal for employers to enact policies preventing employees from exercising their Second Amendment right to bear arms even on company property.

Similar laws exist on the books in a handful of other states, including Kentucky, Mississippi and Georgia. Contrary to most media coverage, Tennessee's guns-in-parking lots bill would allow gun owners to bring their firearms onto any private property, not just company parking lots. This scenario creates a perfect legal storm in which two bitterly contested values collide: property rights and the Second Amendment.

"I've told them from day one that the bill's not going to pass like that," Lt. Gov. Ron Ramsey told The Associated Press. "And they're going to have to take my word for it." Indeed, the House rejected a floor vote of the bill on Monday, and conventional wisdom contends that the bill will remain DOA for the remainder of the assembly.

Regardless, some of Tennessee's largest corporations — most notably FedEx, Volkswagen and Bridgestone — aren't taking any chances, as they would be held liable for potentially astronomical damages under the anti-discrimination bill's provisions. On March 27, a representative for the Tennessee Chamber of Commerce and Industry made it clear to the Senate committee how businesses across the state feel about the potential to be sued.

"The bill you all are about to adopt is the worst bill in the United States of America that any state has adopted on this [issue]," Chamber representative Bradley Jackson told legislators. "It creates a protected class of employee who if they feel they have been discriminated against because they own a handgun, then they have a private right of action" to sue for damages. That, Jackson added, isn't good for employers large or small.

In fact, neither the Faulk bill nor its House counterpart defines what constitutes an "employer." In theory, any company with at least one employee falls under the bill. Compare that to existing civil-rights statutes, in which an employer is defined as a business having at least eight employees. Basically, you'd have a much better chance to sue an employer if your termination had more to do with bringing that sweet .38 Special to work than, say, being a historically oppressed minority. Or disabled. Or a woman.

"Never has there been any empirical evidence that Tennessee employers have in any way ever discriminated against anybody who owns a gun," Jackson told the committee. "This bill is a solution in search of a major problem."

UPDATE (April 30): The original article erroneously identified state Rep. Eddie Bass' party affiliation. He is a Democrat. The Scene regrets the error.

Email editor@nashvillescene.com.

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