Kentucky law uses a "substantial" factor or "mixed-motive" proof approach to all employment discrimination claims under the Kentucky Civil Rights Act, KRS Chapter 344, and in other employment cases as well, such as claims under section 342.197 of the workers compensation law. This proof standard stems from the now long ago rulings of the Kentucky Supreme Court in Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992)(sex discrimination need only be substantial factor to violate KRS Chapter 344) and First Property v. Zarebidacki, 867 S.W.2d 185 (Ky. 1994)(employee only had to show that lawfully impermissible reason for discharge was substantial and motivating factor in 342.197 claim).
Pretext -- that the employer's proffered reason(s) for the adverse employment action is somehow suspect -- is, of course, a commonly litigated issue in discrimination cases. The Sixth Circuit recently in Wallner v. Hilliard Lyons, 13-6548 (October 31, 2014), discussed the imperfect application of pretext analysis to mixed-motive cases:
... we note that the typical examination of pretext, which is geared toward single-motive claims, is only imperfectly applicable to mixed-motive cases. In a mixed-motive case, even if the employer's FMLA-neutral reason did have a basis in fact, did motivate the employer's action, and was sufficient on its own to motivate the employer's action, a mixed-motive FMLA plaintiff may still withstand summary judgment so long as her exercise of her FMLA rights also contributed to the employer's action. Because a mixed-motive plaintiff does not need to disprove the employer's stated reason for the adverse employment action but must show only that it was not the only reason for the employer's conduct, the traditional pretext analysis can be grafted only imperfectly upon a mixed-motive claim. (citations omitted).
