In a somewhat surprising 6-3 decision, the United States Supreme Court held firing an employee because of sexual orientation or gender identity is illegal under federal law.
This meaningful decision was even more meaningful in Nebraska. Nebraska lacks state laws that prohibit workplace discrimination based on gender identity and sexual orientation.
So, how do gay, lesbian and transgender individuals seek justice for workplace discrimination in Nebraska?
180 days to file with EEOC
If you want to sue your employer for sexual orientation or gender identity discrimination in Nebraska, you should file a charge with the federal Equal Employment Opportunity Commission. The charge must be filed within 180 days of when you were fired or your employer took adverse action against you. This is the safest way to bring a case.
Filing a charge of discrimination against your employer is not the same as suing your employer. But under federal law, you should file a charge of discrimination before you can sue your employer. Federal law also requires you to file in federal court. You have 90 days from getting this written permission, called a right to sue, to file in federal court.
Nebraska law normally allows you 300 days to file a charge of discrimination. Charges filed within the 300 days under state law are normally timely under federal law as well. But since Nebraska doesn’t formally cover gender identity or sexual orientation, it is uncertain whether the Nebraska Equal Opportunity Commission (NEOC) would accept that charge. It is also uncertain or whether the EEOC would accept a charge filed after 180 days.
I believe any charge of discrimination based on gender identity or sexual discrimination filed after 180 days would be challenged. as untimely.
How you win your case
I’ve read a lot of misinformation on social media (no surprise) about how discrimination cases work. First, as Justice Gorsuch makes clear, gender identity or sexual orientation does not need to be the sole reason you were fired. Sexual orientation or gender identity just need to be part of the reason you were fired.
Second, the vast majority of discrimination cases are proved by circumstantial evidence. Just because your employer doesn’t tell you that you were being fired for being gay or transgender doesn’t mean you can’t win your case. In a related note, your employer making up a reason to fire you isn’t a defense either. In fact, this would help your case as making up a reason to fire someone as cover for a real reason is defined legally as pretext. Pretext is circumstantial evidence you were fired for an unlawful reason.
Finally, being fired for poor performance or breaking a rule at work may not be a defense to a discrimination case. If your employer tolerated the same misconduct by a similarly situated heterosexual or cisgendered co-worker, that would also prove discrimination.
After 180 days but before 300 days
Nebraska law does not require that you file a charge of discrimination with the NEOC to sue your employer for illegal discrimination. But Nebraska has a 300 day statute of limitations on filing a civil suit against an employer for discrimination. In other words, under state law in Nebraska, you can circumvent the NEOC altogether.
But why would you file a state law claim when state law doesn’t expressly include gender identity and sexual orientation?
The answer is that courts in Nebraska tend to follow federal law in interpreting our state’s anti-discrimination laws. So, you could file a case within 300 days and still succeed under Nebraska state law. But there is no guarantee the Nebraska Supreme Court would follow the United States Supreme Court. Even if the Nebraska Supreme Court found in your favor, the employer would be almost certain to appeal. Appeals can be costly and time consuming. They can also delay resolution of a case.
Bad employees can win discrimination cases, but…
Finally any employee suing their employer for gender identity or sexual orientation discrimination under current Nebraska state law would be acting as a test case. In practical terms that means you need to have a very strong case. All three cases in the United States Supreme Court decision fit that description. Nebraska law doesn’t include an “so-so” or “mediocre” employee exception to our workplace discrimination laws. But in practical terms, a court may be tempted to dismiss a test case involving a sub-par employee.