USA – NEBRASKA Law and Practice Contributed by: Tara Paulson, Mark Fahleson and Julie Schumacher, Rembolt Ludtke LLP
8.2 Anti-Discrimination An aggrieved employee may bring a claim for discrimi - nation under either federal or state civil rights laws. These claims are analysed under a burden-shifting framework. In short, an employee must first establish a prima facie case of discrimination in that they: • were a member of a protected class; • suffered an adverse employment action; and • were treated differently to another employee who is outside their protected class. From there, an employer may challenge this showing by rebutting it with a legitimate, non-discriminatory reason for its action against the employee. Finally, the employee may then challenge this reason by estab - lishing that any such reason was pretextual and this reason was otherwise an attempt to cover up the employer’s true discriminatory motive. Actual damages available vary by statute but, gener - ally, an employee may seek monetary damages for: • lost wages and benefits; • reinstatement; • injunctive relief; • compensatory damages; • attorney’s fees; and • other costs associated with bringing the claim. 8.3 Digitalisation Virtual proceedings and other remote measures are frequently used across all forums in which an employ - ment dispute may be litigated. No single rule has arisen across Nebraska concerning the use of digital technologies in the adjudication of employment dis - putes. Requirements have developed dependent on the preferences of the forum in this regard. • back pay; • front pay; Federal courts, Nebraska state courts and administra - tive agencies (eg, the EEOC, NLRB) continue using remote methods such as telephone conferencing and video platforms such as Zoom or Microsoft Teams to conduct fact-finding, facilitate alternative methods of dispute resolution, and for routine aspects of case management. These measures are even used to hold
• an employer from using genetic information that an employee provided to protect the employee’s health or safety. Individual supervisor liability Individual supervisors are likely not liable for discrimi - natory acts against employees under the NGITL.
8. Disputes 8.1 Wrongful Dismissal
An employee’s ability to bring a claim of wrongful dis - missal must be predicated on some violation of law (such as termination due to discrimination or retali - ation for a protected activity, or a contractual right conferred upon the employee by agreement between the employer and employee). Consequences for a wrongful dismissal are depend - ent on the remedy authorised by the particular statute or theory under which the aggrieved employee has raised the issue. By way of example, an employee claiming discrimination in violation of Title VII may be entitled to monetary damages for: • lost wages and benefits; • reinstatement; • injunctive relief; • compensatory damages; • attorney’s fees; and • other costs associated with bringing the claim. Where the wrongful dismissal claim stems from the breach of a contract, similar “make whole” remedies may be available if the dismissal was in retaliation for engaging in a right protected by law or resulted in a breach of collective bargaining agreement, whereby an arbitration award may follow to “make whole” the employee and award lost wages and potential rein - statement. Wrongful dismissal that results in a breach of an employment contract may result in contractual damages stemming from the terms of the agreement. • back pay; • front pay;
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