Nebraska — Workplace Discrimination

The Nebraska Fair Employment Practice Act (FEPA), codified at Neb. Rev. Stat. §§ 48-1101 to 48-1127, prohibits employment discrimination by employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year—a threshold matching Title VII of the federal Civil Rights Act. The Act also covers the State of Nebraska, governmental agencies, and political subdivisions regardless of employee count. Protected classes under § 48-1104 are race, color, religion, sex, disability, marital status, national origin, and military or veteran status.

Source: Neb. Rev. Stat. § 48-1102; Neb. Rev. Stat. § 48-1104

A written charge alleging violation of the Nebraska Fair Employment Practice Act must be filed with the Nebraska Equal Opportunity Commission within 300 days after the occurrence of the alleged unlawful employment practice. The charge must include a statement of the date, place, and circumstances of the alleged violation, and notice of the charge must be served upon the respondent within ten days after filing.

Source: Neb. Rev. Stat. § 48-1118(2)

Neb. Rev. Stat. § 48-1104 defines the specific acts that constitute unlawful employment practices for employers covered by the Nebraska Fair Employment Practice Act. The statute establishes two core prohibitions that apply to all protected classes — race, color, religion, sex, disability, marital status, national origin, and military or veteran status.

Subsection (1): Hiring, Discharge, Harassment, and Terms of Employment

Under § 48-1104(1), it is unlawful for an employer to fail or refuse to hire, to discharge, or to harass any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual's protected characteristic. The statute expressly names three prohibited acts — refusal to hire, discharge, and harassment — and then adds the catch-all "otherwise to discriminate" language, which extends the prohibition to any differential treatment in compensation or the terms, conditions, or privileges of employment that is based on a protected status.

This subsection covers the full arc of the employment relationship: initial hiring decisions, termination, ongoing harassment, and any aspect of pay, benefits, job duties, or working conditions. The "terms, conditions, or privileges of employment" phrase is broad; it encompasses not only wages and hours but also promotions, demotions, transfers, training, discipline, and other incidents of the employment relationship.

Subsection (2): Discriminatory Classification, Advertising, and Solicitation

Section 48-1104(2) makes it unlawful for an employer to limit, advertise, solicit, segregate, or classify employees in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect that individual's status as an employee, because of a protected characteristic. This prong reaches both pre-employment conduct — such as job advertisements that specify or prefer a particular race, sex, or national origin — and internal employment practices such as segregating employees by protected class, restricting access to certain job titles or classifications, or channeling individuals into particular roles based on membership in a protected group.

The phrase "tend to deprive" means that the practice need not result in actual, completed harm; if the employer's classification or solicitation practice is likely to reduce employment opportunities for individuals in a protected class, it violates the statute.

Perceived Disability

Nebraska courts have held that § 48-1104(1)'s prohibition on disability discrimination extends to perceived disabilities. In Marshall v. EyeCare Specialties, 291 Neb. 264, 865 N.W.2d 343 (2015), the Nebraska Supreme Court ruled that it is unlawful for an employer to discriminate against an individual because of a perceived disability, even when the individual does not have an actual qualifying disability. The court stated that the key inquiry in a disability discrimination case is whether the individual's condition — actual or perceived — inhibits the ability to perform the job safely and efficiently.

Proof of a Violation

The Nebraska Supreme Court has clarified that a complainant alleging a violation of § 48-1104 must prove by a preponderance of the evidence that the adverse employment action was taken because of the protected characteristic. A mere showing that the complainant was not hired or was discharged is insufficient without evidence that the decision was motivated by race, sex, disability, or another protected status. Where there is no allegation of a systemic discriminatory practice, the complainant must establish that the employer intentionally engaged in the specific discriminatory act alleged.

No Private Cause of Action

Section 48-1104 does not provide a private cause of action. An individual claiming an unlawful employment practice must file a charge with the Nebraska Equal Opportunity Commission under the administrative procedures set forth in Neb. Rev. Stat. §§ 48-1116 to 48-1120, or — for complainants who have suffered physical, emotional, or financial harm — may file directly in district court under § 48-1119(4) at any stage prior to dismissal of the administrative charge.

Source: Neb. Rev. Stat. § 48-1104