48-1104. Unlawful employment practice for an employer.

It shall be an unlawful employment practice for an employer:

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

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

Source

Annotations

1. Burden-shifting framework

2. Miscellaneous

1. Burden-shifting framework

Although the burden of production shifts between the plaintiff and the employer, the plaintiff retains the ultimate burden of persuasion, and the ultimate question is discrimination or retaliation vel non. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), framework is a procedural device of order of proof and production, designed to force an employer to reveal information that is available only to the employer, i.e., any unstated reasons for the adverse employment action, as well as any discretionary factors underlying its decision. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

To survive summary judgment in a discrimination case, the nonmoving party must do more than simply create a factual dispute as to the issue of pretext; he or she must offer sufficient evidence for a reasonable trier of fact to infer discrimination. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

The procedure to be followed in presenting evidence relevant to a question about discrimination against a disabled person is: (1) The complainant has the burden of proving a prima facie case of discrimination; (2) the respondent then must articulate some legitimate, nondiscriminatory reason for the rejection or firing; and (3) the complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the respondent were not its true reasons, but were a pretext for discrimination. Father Flanagan's Boys' Home v. Goerke, 224 Neb. 731, 401 N.W.2d 461 (1987).

2. Miscellaneous

Generally, a temporal connection between the protected conduct and the adverse employment action by itself is not enough to present a genuine factual issue on retaliation. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

It is unlawful for an employer to discriminate against an individual because of a perceived disability. Marshall v. EyeCare Specialties, 291 Neb. 264, 865 N.W.2d 343 (2015).

The key inquiry in a discrimination case is whether the individual's condition inhibits his or her ability to perform his or her job safely and efficiently. IBP, Inc. v. Sands, 252 Neb. 573, 563 N.W.2d 353 (1997).

Volunteers are not employees and may not bring suit for damages under the Nebraska Fair Employment Practice Act. City of Fort Calhoun v. Collins, 243 Neb. 528, 500 N.W.2d 822 (1993).

A mere showing that one was not interviewed or hired for a position is insufficient to establish a violation of the Fair Employment Practice Act because in order to recover for a violation, complainant must prove by a preponderance of the evidence that complainant was refused hire on the basis of sex. Where there is no charge of a universal discriminatory practice, complainant must establish, by a preponderance of the evidence, an act done intentionally to discriminate. Nebraska P.P. Dist. v. Lacy, 215 Neb. 462, 339 N.W.2d 286 (1983).

A regulated interstate carrier, subject to superior federal law, had a valid defense to state statutes regarding employment discrimination based upon disability. Ranger Division v. Bayne, 214 Neb. 251, 333 N.W.2d 891 (1983).

It is not a violation of this section to refuse to hire a woman to the position of a police patrolman when in each instance, there were better qualified male applicants available for the position, even if the male applicants with the higher test scores were added to the list after the score of the female applicant had placed her at the top of the list. Snygg v. City of Scottsbluff Police Dept., 201 Neb. 16, 266 N.W.2d 76 (1978).

A classification based on pregnancy is not one based on sex. Richards v. Omaha Public Schools, 194 Neb. 463, 232 N.W.2d 29 (1975).

This section does not provide a private cause of action to a person claiming to be aggrieved by an employer's unlawful employment practice. Sections 48-1116 to 48-1120 do provide a comprehensive administrative remedy from which an appeal may be taken to state district court. Miller v. Union Pacific R. Co., 539 F.Supp. 134 (D. Neb. 1982).

An award of punitive damages is not required for a violation of this section unless necessary to fully protect any federal constitutional right involved. Gilliam v. City of Omaha, 331 F.Supp. 4 (D. Neb. 1971).