Since the mid-1990s jury instructions in retaliation and discrimination cases under the Kentucky Civil Rights Act have stated something to the effect the discrimination or retaliation must be found to have been a substantial and motivating factor but for which the injury would not have occurred. These instructions were derived from two cases, Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992) and First Property Management v. Zarebidacki, 867 S.W.2d 185 (Ky. 1994). An example is the jury instructions in an age discrimination case I tried in 2000, Wells v. Columbia Gas, a case tried when it was still possible to recover punitive damages for violations of the KCRA.
The Kentucky Supreme Court has trimmed the jury instructions for both retaliation and discrimination claims under the KCRA in its recent decision in Asbury University v. Deborah Powell. The trimming is the removal of the "substantial and motivating factor" language, which the Court explained as a redundancy:
If the ultimate question is answered by a "but for" analysis, which the plaintiff must prove to prevail, that is, that the adverse employment action would not have occurred but for her protected conduct, is it really necessary that a plaintiff also have to prove that her conduct was a "substantial and motivating factor"?
The simple answer is that if the adverse action would not have occurred but for her protected conduct, she has more than shown that such was a substantial and motivating factor for the adverse action. To that extent, this language is surplusage. In finding or not finding "but for" causation, the jury has necessarily found or not found that the plaintiff's conduct was a substantial factor in the adverse employment action.
Consequently, while we reiterate our prior decisions in saying that the appropriate causation standard in retaliation cases is "but for" causation, we hold that the "substantial and motivating factor" is surplusage and should not be included in the jury instruction.
So a model instruction and interrogatory for a retaliation claim under the KCRA would be as follows:
Instruction: Under the law of Kentucky, it is unlawful for an employer to fire an in retaliation for the employee's opposition to a discriminatory employment practice. It is not necessary for the retaliatory motive for to be the sole or only reason for the firing; it is sufficient if retaliation is a factor for the termination.
Interrogatory: Do you believe from the evidence that plaintiff would not have been retaliated against and fired but for her protected activity?
Powell was the subject of a prior post: Retaliation Claims Under the Kentucky Civil Rights Act.