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Federal Laws Prohibiting Discrimination in Employment

In addition to the protections set forth herein, the State of Nebraska also prohibits discrimination based on marital status. 

Illegal Activities

Nebraska is an at –will employment state. An employee may be fired for any reason so long as it is not discriminatory or retaliatory. However, an employer may not treat protected class members differently than non-protected class members in the terms, conditions and privileges of employment. For example, an employer may not compensate, lay-off, terminate, deny application, subject to different terms of employment or refuse to hire protected class members in a manner which is different and/or adverse than non-protected class members. Harassment based on an employee’s membership in a protected class is also prohibited. 

There are many types and forms of illegal on the job harassment or discrimination. A few of the more common types of illegal activity is set forth herein. You may wish to consult with an attorney or administrative agency to learn about your rights and privileges of employment.

Types of Discrimination and Retaliation

It is illegal to treat protected class members differently than non-protected class members. For example, an employer may not allow on the job harassment based on an employee’s age, gender, race, national origin, ethnicity, pregnancy or religious beliefs. The law contemplates that an employer must treat all similarly situated employees in the same or similar manner in the terms, conditions and privileges of employment such as shifts assigned, compensation received, hiring firing, lay offs, termination, transfers or promotions, etc.

If an employee reports or complains of job discrimination or harassment to their employer or administrative agency, an employer may not retaliated against the employee in their terms, conditions and privileges of employee. Retaliation of an employee who has engaged in a protected activity is prohibited.

Administrative Remedies

Both State and Federal law require, under most of the statutes discussed herein, that an employee who has been discriminated against because of their membership in a protected class filed a charge of discrimination with the Nebraska Employment Opportunity Commission and the Equal Employment Opportunity Commission. The law dictates very specific deadlines by which an injured employee must file with the NEOC or the EEOC prior to filing a lawsuit. Many of the anti-discrimination statutes require a minimum number of employees to be on the payroll in order for statute to apply to a certain employer. 

Due to the complexity of discrimination law, it is best to consult with the appropriate administrative agency and/or an attorney as soon as possible after the illegal action has occurred.

State and Federal Remedies

  • Right to trial by jury (in most cases);
  • Back wages and the value of lost fringe benefits;
  • Front pay and the value of fringe benefits;
  • Reinstatement;
  • Compensatory damages for pain and suffering;
  • Punitive damages for willful conduct;
  • Attorney’s fees and litigation costs;

Summary

Employment discrimination and/or retaliation litigation is extremely complex. Give the complex nature of the substantive and procedural aspects of discrimination law, it is wise to consult with an attorney if you believe that you have been subjected to workplace discrimination, harassment or retaliation. 


Relevant Federal Statutes

I. Title VII of the Civil Rights Act provides, in part as follows:

(a) It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 

(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on
the basis of his race, color, religion, sex, or national origin. 

(c) It shall be an unlawful employment practice for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin; 

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. 

(d) It shall be an unlawful employment practice for any employer, labor organization, or joint labor management committee controlling apprenticeship or other training or retraining, including on the job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide
apprenticeship or other training. 


II. The Equal Pay Act provides, in relevant part:

d) (1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment
for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is
paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. 

(2) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection. 


III. The Age Discrimination In Employment Act provides in relevant part:

(a) It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; 

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter. 

(b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual's age, or to classify or refer for employment any individual on the basis of such individual's age. 

(c) It shall be unlawful for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age; 

(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for
employment, because of such individual's age; 

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. 

(d) It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual,
member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 

(e) It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any
preference, limitation, specification, or discrimination, based on age. 


IV. The Americans With Disability Act provides in relevant part:

(a) General rule. - No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 

(b) Construction. - As used in subsection (a) of this section, the term ``discriminate'' includes-

(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee; 

(2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs); 

(3) utilizing standards, criteria, or methods of administration-

(A) that have the effect of discrimination on the basis of disability; or

(B) that perpetuate the discrimination of others who are subject to common administrative control; 

(4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; 

(5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or
applicant; 

(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity; and

(7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure). 


V. The Civil Rights Act of 1991 provides in relevant part: 

"(a) Right of Recovery. -

"(1) Civil Rights. - In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C.2000e-5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages as allowed
in subsection (b), in addition to any relief authorized by section 706(g)of the Civil Rights Act of 1964, from the respondent. 

"(2) Disability. - In an action brought by a complaining party under the powers, remedies, and procedures set forth in section 706 or 717 of the Civil Rights Act of 1964 (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117 (a)), and section 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)),
respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) and the regulations implementing section 501, or who violated
the requirements of section 501 of the Act or the regulations implementing section 501 concerning the provision of a reasonable accommodation, or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act, against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent. 

"(3) Reasonable Accommodation and Good Faith Effort. - In
cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to section 102(b)(5) of the Americans with Disabilities Act of 1990 or regulations implementing section 501 of the Rehabilitation Act of 1973, damages may not be awarded under this section where the covered entity demonstrates good faith efforts, in
consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business. 

"(b) Compensatory and Punitive Damages. -

"(1) Determination of punitive damages. - A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved
individual. 

"(2) Exclusions from compensatory damages. - Compensatory
damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964. 

"(3) Limitations. - The sum of the amount of compensatory
damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded
under this section, shall not exceed, for each complaining party -

"(A) in the case of a respondent who has more than 14 and
fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000; 

"(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and

"(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and

"(D) in the case of a respondent who has more than 500
employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. 

"(4) Construction. - Nothing in this section shall be
construed to limit the scope of, or the relief available under, section 1977 of the Revised Statutes (42 U.S.C. 1981). 

"(c) Jury Trial. - If a complaining party seeks compensatory or punitive damages under this section -

"(1) any party may demand a trial by jury; and

"(2) the court shall not inform the jury of the limitations described in subsection (b)(3). 

"(d) Definitions. - As used in this section:

"(1) Complaining party. - The term 'complaining party' means - "
(A) in the case of a person seeking to bring an action under subsection (a)(1), the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or

"(B) in the case of a person seeking to bring an action under subsection (a)(2), the Equal Employment Opportunity Commission, the Attorney General, a person who may bring an action or proceeding under section 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)), or a person who may bring an action or proceeding under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.). 

"(2) Discriminatory practice. - The term 'discriminatory
practice' means the discrimination described in paragraph (1), or the discrimination or the violation described in paragraph (2), of subsection (a). 

42 U.S.C. Section 1981 

(a) Statement of equal rights 
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 

(b) ''Make and enforce contracts'' defined 
For purposes of this section, the term ''make and enforce contracts'' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 

(c) Protection against impairment 

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law 


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