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53 U. Louisville L. Rev. Online 1 (2014)
Navigating Kentucky Employment Retaliation Law in the Wake of Brooks v. Lexington-Fayette Urban County Housing Authority
L. Joe Dunman*

      The Supreme Court of Kentucky insists that clearly-written laws should be given the full weight of their language: “When the words of a statute are clear and unambiguous and express the legislative intent, there is no room for construction or interpretation and the statute must be given its effect as written.” When problems of statutory construction arise, Kentucky courts must rely on the “plain meaning and unambiguous intent expressed in the law.”

      But sometimes simply-written laws with clear, unambiguous language still result in complex tests, standards, and procedural hurdles for litigants. Sometimes straight-forward statutory text is even interpreted to mean something else completely. Such is the case of Kentucky’s prohibition of workplace retaliation for complaints of discrimination. A law that appears quite simple on its face—and quite broad in its scope—has become much more complicated for litigants in recent years.

      Despite the clear language of Kentucky Revised Statutes (KRS) Section 344.280—part of the Kentucky Civil Rights Act (KCRA)—plaintiffs who bring workplace retaliation claims under Kentucky law must know that Kentucky courts interpret the statute consistently with the federal Title VII retaliation law. While that seems intuitive, it can confuse anyone who actually reads the Kentucky statute and relies on its text. Though KRS 344.280 appears to allow claims against any individual or group of individuals for any retaliatory or discriminatory behavior whatsoever, Kentucky courts do not agree. This particular statutory construction has enabled many defendants to succeed on motions for summary judgment and for plaintiffs to lose many subsequent appeals.  

      In the event that state retaliation claims are brought on a contingency basis, plaintiff lawyers must weigh the stricter judicial standard when choosing whether to file suit. A claim that may appear likely to succeed under the broad language of KRS 344.280 may actually be quickly dismissed before a jury ever gets to hear the plaintiff’s story. Conversely, an effective motion for summary judgment is critical for the defense—the Kentucky Court of Appeals rarely reverses summary judgments in favor of retaliation defendants.

            This article will help readers navigate recent state employment retaliation law decisions by the Kentucky Supreme Court and Court of Appeals. Section 2 will compare the actual language of KRS 344.280 to the Kentucky Supreme Court’s construction of it in Brooks v. Lexington-Fayette Urban County Housing Authority, the seminal and controlling decision for Kentucky workplace retaliation law. Section 3 will examine the four distinct elements of a prima facie case of workplace retaliation, citing recent Kentucky appellate cases that have turned on each element. Then, Section 4 will explore a defendant’s burden of offering a non-discriminatory reason for an adverse employment action, followed by a discussion of the plaintiff’s burden of proving that the employer’s reason was in fact pretextual. Section 5 will briefly outline the remedies available to plaintiffs under the Kentucky Civil Rights Act, as well as other important issues such as waiver and preemption. Finally, this article concludes in Section 6 with a general summary of the hurdles facing litigants who bring and defend workplace retaliation claims in Kentucky.

* Attorney at Law, Clay Daniel Walton & Adams, PLC, Louisville, Kentucky. The author thanks Ariana Levinson, Assistant Professor, University of Louisville Brandeis School of Law, and Daniel J. Canon, Attorney at Law and colleague at Clay Daniel Walton & Adams, PLC, for their editorial assistance and inspiration.