USA – NEBRASKA Law and Practice Contributed by: Tara Paulson, Mark Fahleson and Julie Schumacher, Rembolt Ludtke LLP
7.5 Protected Categories of Employee Under Nebraska law, it is illegal for employers to dis - criminate in employment decisions based on certain protected categories. These protected categories of employees mirror and exceed what is covered by analogous federal laws such as Title VII of the 1964 Civil Rights Act and the ADA. Nebraska Fair Employment Practice Act The Nebraska Fair Employment Practice Act (NFEPA) prohibits employment-related discrimination based on: • race and race-related characteristics, including skin colour, hair texture and protective hairstyles; • colour; • religion; • sex, including pregnancy, childbirth and related medical conditions; • disability; • marital status; and • national origin. The NFEPA covers: • employers with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year and any agent of the employer; • any party whose business is financed in whole or in part under the Nebraska Finance Authority Act, regardless of the number of employees; • the state, state agencies and state political subdivi - sions, regardless of the number of employees; • employment agencies; and • labour organisations. Prohibited conduct Under the NFEPA, an employer may not, based on an individual’s protected status: • fail or refuse to hire an applicant; • discharge an employee; • harass any individual; • otherwise discriminate against any individual regarding compensation, terms, conditions or privi - leges of employment;
• limit, advertise, solicit, segregate or classify employees in any way that would: (a) deprive or tend to deprive any individual of employment opportunities; or (b) otherwise adversely affect an individual’s sta - tus as an employee. Individual supervisor liability The NFEPA does not specifically address whether individual supervisors are liable for discriminatory acts against employees. However, individual supervisors are likely not liable because the NFEPA is modelled after Title VII. The Nebraska Supreme Court has previ - ously looked to Title VII when interpreting the NFEPA. Because federal courts have ruled that individual supervisors are not “employers” liable for discrimina - tory acts under Title VII, it is also unlikely that indi - vidual supervisors would be liable under the NFEPA. However, a federal court interpreting NFEPA has held that an employer may be liable for an employee’s unlawful retaliation. Nebraska Age Discrimination in Employment Act The Nebraska Age Discrimination in Employment Act (NADEA) prohibits employment discrimination based on a person’s age where the person is 40 or older. The NADEA applies to: • employers with 20 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year; • any person acting, directly or indirectly, in the inter - est of an employer; • the state, its political subdivisions and state agen - cies, regardless of the number of employees; • any party whose business is financed in whole or in part under the Nebraska Investment Finance Authority Act; • employment agencies; and • labour organisations. Prohibited conduct Unless the reasonable demands of a position require an age distinction, an employer may not, based on an individual’s age: • refuse to hire an applicant; • discharge an employee;
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