Tag Archives: contributing factor

Why civil rights laws tolerate racial discrimination in the workplace

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The murder by Minneapolis Police of George Floyd sparked clashes between protesters and police this weekend in Nebraska and nationally. Elected officials in Lincoln and Omaha imposed almost unprecedented curfews attempting to quell violence.

The protests focused some attention on the problems with civil rights laws in remedying police violence against people of color. But, civil rights laws are also flawed when it comes to discouraging discrimination on the job.

“But for” and “motivating factor”

An employee must show their employer used race as motivating factor to win a racial discrimination case under state or federal law. The law distinguishes “motivating factor” from the more permissive “contributing factor” standard. Legally an employer could get away with being sort of racist in making an employment decision, so long as they weren’t too racist.

The United States Supreme Court recently increased the quantum of legally tolerated racism towards African-Americans. In the Comcast decision, the Supreme Court held African-Americans must prove race was a “but for” factor to win under 42 USC 1981. Plaintiff’s face an even steeper burden of proof in proving a “but for” factor rather than a motivating factor.

42 USC 1981 outlaws racial discrimination in contracting – including employment. But Section 1981 does not require claimants to file an administrative charge and has a four year statute of limitations. Title VII has a 300 day statute of limitations and requires claimants to file a charge of discrimination with a civil rights agency. Weakening the substantive protections of 1981 undercuts the procedural advantages of bringing a 1981 claim.

Reasonable inference or speculation?

Civil rights laws still pack some punch in stopping racial discrimination at work. The law tolerates some level of racial discrimination in employment. But it is up to a jury to weigh how important racial discrimination was in an employment decision. That is an expensive and risky proposition for an employer. A judge shouldn’t dismiss a case on summary judgment, if an employee shows race was a contributing factor in their termination.

On summary judgment, judges are supposed to give employees the benefit of reasonable inferences. But what one person views as reasonable inference another might view as speculation. Speculation won’t beat a summary judgment motion.

Contributing factor causation would take the guesswork out of summary judgment motions in employment discrimination cases.  The increased likelihood of a jury verdict in a racial discrimination claim would force employers to increase vigilance in preventing racial discrimination in the workplace.

Implementing contributing factor causation in employment discrimination cases and abolishing qualified immunity in police brutality cases won’t make racism disappear. But those proposals are at least concrete measures that would lessen the effects of racism in this country.

I believe it’s important to state that appellate court judges have written these causation standards into civil rights laws. But what judges do, legislators can undo. I hope the undoing starts in Lincoln and Washington DC soon.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Why can’t I find a workers’ compensation lawyer in Kansas?

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I received a call from a former client one afternoon.

“My sister got hurt at work in Kansas, but she can’t find a lawyer. Do you know someone?”

I had a similar question a few months earlier. So why is it harder to get a workers’ compensation lawyer in Kansas than it is in Nebraska?

The short answer to the question is Nebraska has much better workers’ compensation laws than Kansas, so more lawyers are willing to take workers’ compensation cases in Nebraska than they are in Kansas.

Because of a quirk of legal history, explained more in depth here, workers’ compensation laws developed as state-based laws. Bordering states can have vastly different workers’ compensation laws –Nebraska and Kansas are a prime example

Kansas v. Nebraska: Prevailing cause vs. contributing factor

Medical causation is a crucial issue in a workers’ compensation case. Causation standards are tougher for employees in Kansas. In Kansas work duties must be a prevailing factor for an injury to be covered under their workers’ compensation act. In Nebraska work just needs to be a contributing factor to the injury. 

In Nebraska, aggravation of an old injury is routinely covered by workers’ compensation. If a work combines with personal health conditions to cause an injury, that is covered by workers’ compensation in Nebraska. In Nebraska, in most workers’ compensation cases the parties aren’t arguing over whether workers’ compensation will pay, they are arguing over how much workers’ compensation will pay.

In Kansas, there are many more arguments about whether workers’ compensation will pay because of the more difficult causation standards in their workers’ compensation law.

The practical effect of the difference in laws is that it is hard to find a lawyer willing to take a workers’ compensation case in Kansas. Some Kansas attorneys view calls about workers’ compensation cases as borderline nuisance calls.  The shortage of lawyers in Kansas willing to take workers’ compensation claims particularly hurts injured workers that are far away from metropolitan areas that require lawyer travel.

In contrast, in Nebraska, lawyers who specialize in workers’ compensation usually have significant client bases outside of Lincoln/Omaha and travel to the less populated parts of the state on a regular basis. Nebraska pays many types of injuries on a loss of earning power basis, which means that injured workers in parts of the state that are remote from population centers potentially have more valuable cases. Lawyers in Nebraska are willing to travel to represent those employees. In Kansas that distance from a population center is hurdle to a lawyer accepting a case.

Sometimes employees can get get a good outcome in a Kansas workers’ compensation case. This also isn’t to say that there aren’t good workers’ compensation lawyers in Kansas. Tough laws can make for tough lawyers. But Kansas workers’ compensation laws are worse for workers than Nebraska laws, so fewer lawyers are willing to represent injured workers in Kansas than in Nebraska.

How to claim Nebraska workers’ compensation if you were hurt in or live in Kansas?

In order to bring a workers’ compensation case in Nebraska, Nebraska has to have jurisdiction over the employee and the employer. If you were hurt in or hired in Nebraska, you can bring a Nebraska workers’ compensation claim. If your employer is based in Nebraska or does business in Nebraska, your employer is subject to the Nebraska workers’ compensation act and you can bring a case in Nebraska.

Why are workers’ compensation laws better in Nebraska than in Kansas?

This is more of a political question than a legal question. Nebraska and Kansas are both conservative “red states”. I believe the difference between Nebraska and Kansas when it comes to workers’ compensation, and other issues, can be explained by the unique nature of Nebraska’s legislature. Nebraska is unique among the 50 states in having a one house or Unicameral legislature. More important are legislative rules in Nebraska that require a broad consensus to enact legislation. Nebraska also elects legislators on a non-partisan basis which further re-enforces the need for consensus to pass laws. These rules are further enforced by norms and customs within the Unicameral that make it difficult to push through legislation without broad support.

The current Governor has pushed to change those rules, but has not been able to bend the Unicameral to his will.

While big business interests will gripe about workers’ compensation in Nebraska, Nebraska has a business-friendly litigation climate in general which blunts the pressure to reduce workers’ compensation benefits in Nebraska. This is particularly true as workers’ compensation claims continue to decline. In short, there doesn’t seem to be the political will — at this time — to push for making Nebraska’s workers’ compensation laws like Kansas workers’ compensation laws.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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