The U.S. Court of Appeals for the Eleventh Circuit upheld a trial court’s judgment against a prospective employee who claimed he was not hired because he had previously filed for bankruptcy. Eric Myers v. Toojay’s Management Corporation (Case No. 10-10774, May 17, 2011). The employee appealed from a decision of the U.S. District Court for the Middle District of Florida which held that Toojay’s did not violate a section of the Bankruptcy Code which prohibits employers from taking certain actions against people who are or have been in bankruptcy.
The first subsection of the provision, 11 U.S.C. §525(a) applies to government employers. It says that they may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a person on that ground. The second subsection, which applies to private employers, says they may not “terminate the employment of, or discriminate with respect to employment against” an individual on that ground, 11 U.S.C. § 525(b).
Toojay’s (a private employer) offered Mr. Myers a job as a deli manager, subject to a credit check and an on the job evaluation. The credit check revealed that he had previously filed for personal bankruptcy and for that reason the offer of employment was withdrawn. The primary issue in the appeal was whether §525(b) should be read to prohibit a private employer from denying employment to an individual because he is or has been in bankruptcy, even though, unlike §525(a), it does not expressly say so.
The Court of Appeals affirmed the trial court’s rulings that the omission of the prohibition against a private employer denying employment to an individual because of his or her bankruptcy must be given effect: “Where Congress has carefully employed a term in one place but excluded it in another, it should not be implied where excluded. . . If TooJay’s were a governmental unit, Myers would have a refusal to hire claim; because it is not, he does not.”
The Eleventh Circuit said that its literal interpretation of this non-discrimination provision of the Bankruptcy Code was consistent with decisions from other federal courts, including one the Fifth Circuit handed down in March of this year, In re Burnett, Case. No. 10-20250, 2011 WL 754152.
The first subsection of the provision, 11 U.S.C. §525(a) applies to government employers. It says that they may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a person on that ground. The second subsection, which applies to private employers, says they may not “terminate the employment of, or discriminate with respect to employment against” an individual on that ground, 11 U.S.C. § 525(b).
Toojay’s (a private employer) offered Mr. Myers a job as a deli manager, subject to a credit check and an on the job evaluation. The credit check revealed that he had previously filed for personal bankruptcy and for that reason the offer of employment was withdrawn. The primary issue in the appeal was whether §525(b) should be read to prohibit a private employer from denying employment to an individual because he is or has been in bankruptcy, even though, unlike §525(a), it does not expressly say so.
The Court of Appeals affirmed the trial court’s rulings that the omission of the prohibition against a private employer denying employment to an individual because of his or her bankruptcy must be given effect: “Where Congress has carefully employed a term in one place but excluded it in another, it should not be implied where excluded. . . If TooJay’s were a governmental unit, Myers would have a refusal to hire claim; because it is not, he does not.”
The Eleventh Circuit said that its literal interpretation of this non-discrimination provision of the Bankruptcy Code was consistent with decisions from other federal courts, including one the Fifth Circuit handed down in March of this year, In re Burnett, Case. No. 10-20250, 2011 WL 754152.
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