Navigating Kentucky Employment Retaliation Law in the Wake of Brooks v. Lexington-Fayette Urban County Housing Authority

Abstract

Like Title VII, the Kentucky Civil Rights Act includes an anti-retaliation provision. Unlike its federal counterpart, however, the language of the KCRA broadly prohibits retaliation or discrimination “in any manner” by “a person” or “two or more persons.” Though the statutory text differs significantly from that of Title VII (which limits claims against non-employers and requires a materially adverse action), the Kentucky Supreme Court has construed KRS 344.280 to be identical in effect as its federal counterpart. This construction, found in Brooks v. Lexington-Fayette Urban County Housing Authority, has defined how courts have analyzed and adjudicated retaliation claims in Kentucky.

This article will help readers navigate recent state employment retaliation law decisions by the Kentucky Supreme Court and Court of Appeals by comparing the actual language of KRS 344.280 to the Kentucky Supreme Court’s construction of it in Brooks v. Lexington-Fayette Urban County Housing Authority. Also included is an analysis of the four distinct elements of a prima facie case of workplace retaliation, citing recent Kentucky appellate cases which have turned on each element. A defendant’s burden of offering a non-discriminatory reason for an adverse employment action follows, along with a discussion of the plaintiff’s burden of proving that the employer’s reason was pretext. Finally, the remedies available to plaintiffs under the Kentucky Civil Rights Act, as well as other important issues such as waiver and preemption, are explored.

Keywords: Kentucky Civil Rights Act, Employment Law, Discrimination, Retaliation, Title VII, Kentucky Supreme Court

JEL Classification: E24, J71, M51