"Solely Because" In Bankruptcy Retaliation Proviso, Means Solely

Posted 9:04 PM by Michael Fox

This is a decision Justice Clarence Thomas, a great literalist, would love. When the statute says it is impermissible to fire an employee who has been a debtor "solely because" he has filed for bankruptcy and the employee's argument is that the statute should not be read literally, but should be read like Title VII, to require that it only be a substantial factor, guess who is going to win? Bet on the literal reading.

Which is exactly what the Court found in White v. Kentuckiana Livestock Market, Inc. (6th Cir. 2/9/05) [pdf]. Even though the employer fired an employee (and his wife who was also employed by the same employer) 3 days after they filed for bankruptcy, and even though the employer responded to the unemployment claim prominently mentioning the employee's bankruptcy, first the bankruptcy judge, then the district court and now the 6th Circuit were convinced that the plaintiff's offer to help the employer defraud on taxes, had also played a role in the decision. With something else a part of the decision, it could not have been "solely" based on their having filed bankruptcy, hence no violation.

Although here it was not fatal to the employer's defense, it is a good example of the importance of what is often the first response to the question why an employee was fired -- the unemployment claim. Many a defensible case has been made considerably more difficult (read more expensive as well) because of a hasty, not completely informed response to an unemployment claim.

Labels: retaliation

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