The Kentucky Civil Rights Act (KCRA) prohibits retaliation against an employee or individual that reports or opposes a discriminatory employment practice. But does this protection apply if the discriminatory employment practice is not itself unlawful? The Kentucky Supreme Court ruled recently in Asbury University v. Deborah Powell that the protection applied, provided the employee has a reasonable, good-faith belief that a discriminatory employment practice has occurred.
The plaintiff, Deborah Powell, was the women's basketball coach at Asbury University. She complained and reported what she viewed as sexually discriminatory practices directed both at her individually and at women's sports at the university more generally. Eventually, the university made up a reason to fire Powell; she responded by filing suit advancing claims of sex discrimination while she was employed and retaliation by her firing for reporting and complaining of the sex discrimination. A jury found for the university on Powell's sex discrimination claim; however, the jury found for Powell on her retaliation claim and awarded her more than $388,000 in lost wages and damages.
To the Kentucky Supreme Court the university argued that Powell's retaliation claim had to fail as a matter of law, since the jury had found no unlawful sex discrimination. The Court, in an opinion authored by Justice Mary Noble, unanimously rejected the university's argument and explained as follows:
... an underlying violation of the KCRA need not necessarily be proved to sustain a retaliation claim under KRS 344.280(1).
Instead, as under the federal rule, all that is required to obtain retaliation protection under KRS 344.280(1) is that the employee have "a reasonable and good faith belief" that the adverse employment practices she opposed were KCRA violations.
And whether that belief is reasonable or in good faith is a question for the jury. Consequently, a jury could believe that the alleged discriminatory conduct of the employer was not in fact discriminatory, but that it could have reasonably appeared so to the employee. That is the upshot of the jury's finding here. A retaliation claim is premised on the notion that the employer takes adverse action against an employee because the employee exercised the right to speak out against discrimination.
Powell is a significant decision and will be the subject of further posts.