Most employees in Kentucky are at-will employees, meaning their employment can be terminated at any time and for about any reason - no matter its moral indefensibility - except for the limited few statutory, constitutional and other legally-protected reasons. Put another way, the employment-at-will doctrine means an employee can be fired for any reason except an illegal one. Retaliation against an employee is an illegal reason to fire an employee in Kentucky, one that is specifically prohibited by the Kentucky Civil Rights Act, KRS 344.280.
In its important recent decision in Powell v. Asbury University, the Kentucky Supreme Court considered whether the trial court should have given an employment-at-will jury instruction as requested by the employer. The Court found this argument to have "no merit" and explained as follows:
The instructions given ... were sufficient to convey the applicable law to the jury. They required the jury to find that Powell engaged in protected activity in complaining about perceived sex discrimination; that she had a good-faith, reasonable basis for her complaints; that she suffered adverse employment action; that Asbury officials responsible for the action against her were aware of her complaints; (unnecessarily) that her complaining about sex discrimination was a substantial and motivating factor in the adverse employment action; and that but for her complaining about sex discrimination, the adverse employment action would not have been taken. In other words, the instructions properly directed the jury to find in Powell's favor if they believed from the evidence that Asbury's retaliatory animus against Powell's protected activity was a but-for cause of the non-renewal of her employment. No more was required. That Powell was an at-will employee is no defense to illegal retaliation.
Powell is an important decision regarding claims under the Kentucky Civil Rights Act and particularly retaliation claims, as has been noted in numerous prior posts: Retaliation Claims Under the Kentucky Civil Rights Act, But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act, Retaliation Need Only Be A Factor Not the Only Factor to Violate the Kentucky Civil Rights Act, and Retaliation, the Temporal Proximity Doctrine and an Employee's Continuing Complaints about Discrimination.
Robert L. Abell
www.RobertAbellLaw.com
