Recently, the ACLU of Nebraska (ACLU-NE) advocated for two clients who were Nebraska state employees to ensure they were treated equally at work, regardless of immigration status or gender identity. As most Nebraskans rely on their jobs to earn the money necessary to support themselves and their families, everyone needs a basic understanding of the legal protections they are afforded while at work. All Nebraskan workers have the right to be free from discrimination, harassment, and retaliation in the workplace. ACLU-NE is committed to ensuring Nebraskans know their rights in various contexts including while they are at work.
If you work for an employer with fifteen or more employees,[1] including the State of Nebraska, Title VII of the Civil Rights Act of 1964, as amended, protects you against discrimination based on race, color, religion, sex, disability, or national origin, regardless of citizenship or immigration status. Under Title VII, an employer cannot treat employees of similar rank, position, duties, and experience differently such as by offering certain benefits or protections to some but not others.
For employees who are not U.S. citizens who have authorization to work in the U.S.,[2] employment benefits cannot be withheld or denied based on national origin, citizenship or immigration status.[3] When our client, an asylum seeker with work authorization, was not receiving retirement benefits despite otherwise being eligible to participate in the retirement contribution plan, we successfully advocated for their enrollment, including make-up contributions backdating to the start of their employment.
For employees who are LGBTQ+, employers must provide a work environment free from discrimination regardless of sex or gender. Title VII protects employees from all forms of gender-based discrimination, which includes pregnancy, childbirth, and related conditions, as well as sexual orientation and gender identity.[4] When our client, a transgender employee, was harassed and assaulted at work, ultimately leading to their termination, we successfully advocated for their position to be reinstated and benefits restored, and that all employees within the department complete a two-part training including promoting respect and dignity in the workplace with a focus on issues facing LGBTQ+ employees before our client returned to work.
Title VII created the U.S. Equal Employment Opportunity Commission (EEOC) which is responsible for enforcing the federal laws that protect employees from discrimination and hostile treatment at work. The EEOC has work share agreements with three Nebraska-based administrative agencies responsible for enforcing state and local anti-discrimination laws: 1) the Nebraska Equal Opportunity Commission (NEOC), the state agency responsible for investigating and enforcing claims under the Nebraska Fair Employment Practice Act (FEPA) the state equivalent of Title VII for employment rights, against employers that employ 15 or more people,[5] 2) the Lincoln Commission on Human Rights (LCHR), the City of Lincoln division responsible for investigating and enforcing claims under Title 11 of the Lincoln Municipal Code (LMC)[6] against employers within the city limits of Lincoln who employ four (4) or more people,[7] and 3) Omaha Human Rights and Relations Department (OHRRD), the City of Omaha department responsible for investigating and enforcing claims under Chapter 13 of the Omaha Municipal Code (OMC)[8] against employers within the Omaha city limits who employee six (6) or more people[9].
Filing a complaint with the EEOC, NEOC, LCHR or OHRRD is the first step to seek a legal remedy to a claim of unlawful discrimination or hostile treatment at work under Title VII, FEPA, or the local anti-discrimination ordinances within the LMC or OMC.[10] Employees may file with the EEOC or the Nebraska administrative agency, NEOC, LCHR or OHRRD, who will ensure that their claim is processed by the proper administrative agency and that their claim will be simultaneously filed under all applicable federal, state and local laws. In most cases, an employee has 300 days from when the discriminatory act took place to file a charge alleging possible employment discrimination.[11]
In addition to protections under Title VII, Section 1981 of the Civil Rights Act of 1866 prohibits discrimination on the basis of race, color, and ethnicity when making or enforcing contracts, which has been interpreted to apply to the employment context, including at-will employment and the independent contractor relationship. Section 1981 applies to all employers regardless of size and allows for employee to file a case in court within four (4) years of the alleged discriminatory act. Moreover, Nebraska Revised Statute §
We all have the right to work in an environment free of discrimination, harassment, and retaliation. If your employer is not complying with the law or you suspect that your rights are being violated, we encourage you to take immediate action. Click on one of the above links to start the process of filing a charge with an anti-discrimination administrative agency. You can also contact the ACLU-NE team at gethelp@aclunebraska.org for more information, or our intake partner Legal Aid of Nebraska at 1-877-250-2016, Monday or Wednesday mornings 8:30 to 11:30 a.m. or Tuesday or Thursday afternoons from 1:00 to 3:00 p.m.
[1] But see infra notes 7 & 9 (expanding jurisdiction to include smaller employees within the cities of Lincoln and Omaha).
[2] Work or employment authorization in the U.S. is evidenced by a Form I-551, Permanent Resident Card (commonly referred to as a “Green Card”) or Form I-766/EAD, Employment Authorization Document (referred to as “EAD card”).
[3] 8 U.S.C. § 1621(c)(2)(B); 8 U.S.C. 1182(n)(2)(C)(viii); Beltagui v. Nebraska Dept. of Health and Hum. Servs., 2018-LCA-00004, 22 (Nov. 16, 2018).
[4] Bostock v. Clayton Cty., 140 S. Ct. 1731, 1754 (2020).
[5] Neb. Rev. Stat. § 48-1104.
[6] Lincoln, Neb., Municipal Code ch. 11.08, et seq., Fair Employment Practices.
[7] Id. at ch. 11.01., section 11.01.010.
[8] Omaha, Neb., Municipal Code, art. III, §13-88 et seq., Discrimination in Employment.
[9] Omaha, Neb., Municipal Code, ch. 3, art. III, §13-88(c).
[10] Green v. Brennan, 578 U.S. 547, 552–53 (2016).
[11] An employee can file an employment discrimination complaint against an employer within Lincoln city limits with the local anti-discrimination agency LCHR within one year (365 days) from the date of the alleged discriminatory action. Lincoln, Neb. Municipal Code, § 11.02.060.
[12] Potter v. Bd. of Regents, 287 Neb. 732 (2014).