Ark. Code Ann. » Title 16 Chapter 123
Arkansas Code Annotated

Ark. Code Ann. § 16-123-103 (2026)

Applicability

✓ current as of May 2026
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  1. The provisions of this subchapter relating to employment shall not be applicable with respect to employment by a religious corporation, association, society, or other religious entity.
  2. It shall not constitute employment discrimination under this subchapter for an employer to refuse to accommodate the religious observance or practice of an employee or prospective employee if the employer demonstrates that he or she is unable to reasonably make such accommodation without undue hardship on the conduct of the employer's business.
  3. A defendant may avoid liability under this subchapter by showing that his or her actions were based on legitimate, nondiscriminatory factors and not on unjustified reasons.
  4. Provided the conduct at issue is based on a bona fide business judgment and is not a pretext for prohibited discrimination, nothing in this subchapter shall be construed to prohibit or restrict:
    1. An insurer, hospital, medical service company, health maintenance organization, or any agent or entity that administers benefit plans, or any bank, savings and loan, or other lender from underwriting insurance or lending risks or administering such risks that are based on or are not inconsistent with federal or state law;
    2. A person covered by this subchapter from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or are not inconsistent with federal or state law; or
    3. A person covered by this subchapter from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that is not subject to federal or state laws that regulate insurance.
  5. This subchapter shall not apply to matters regulated by the Arkansas Insurance Code or the Trade Practices Act of the Arkansas Insurance Code, § 23-66-201 et seq.

History. Acts 1993, No. 962, §§ 6, 8.

Publisher's Notes. This section was formerly codified as § 16-123-108.

For codification of the Arkansas Insurance Code, see the note at § 23-60-101.

Research References

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Civil Rights, 26 U. Ark. Little Rock L. Rev. 841.

Case Notes

Burden of Proof.

Trial court did not err in rejecting employees' proposed instruction because the employees had the burden to prove an adverse employment action motivated by intentional discrimination, and the proposed language improperly shifted the ultimate burden of proof to the employer. Brown v. UPS, Inc., 2017 Ark. App. 501, 531 S.W.3d 427 (2017).

“Honest belief” rule is not an affirmative defense; it is simply a rule. Brown v. UPS, Inc., 2017 Ark. App. 501, 531 S.W.3d 427 (2017).

Sexual Harassment.

Trial court erred in granting summary judgment against claims of sexual harassment in violation of § 16-123-107(a) of the Arkansas Civil Rights Act of 1993, § 16-123-101 et seq., and for wrongful termination in violation of the public policy of the State of Arkansas, where there were genuine issues of fact as to whether an at-will female employee was terminated from her job in retaliation for resisting the sexual advances of her employer or because the employee's position was going to be given to the employer's son; a lack of termination, or a non-gender-based reason for the employee's termination, does not extinguish a harassed employee's cause of action for sexual harassment under the Arkansas Civil Rights Act of 1993. Island v. Buena Vista Resort, 352 Ark. 548, 103 S.W.3d 671 (2003).

Claims of sexual harassment premised under the Arkansas Civil Rights Act of 1993, § 16-123-101 et seq., are analyzed in the same manner as claims brought under 42 U.S.C. § 2000e-2(a)(1) of the Civil Rights Act of 1964. Island v. Buena Vista Resort, 352 Ark. 548, 103 S.W.3d 671 (2003).

Termination from Employment.

Where an employee has alleged two separate injuries, one being a work-related physical injury and disability, for which she has received workers' compensation benefits, and one being a subsequent nonphysical injury arising from employer's action in terminating her based upon her new disability, the first injury is exclusively cognizable under the Workers' Compensation Act (see § 11-9-105), while the subsequent injury is of the type envisioned by this subchapter. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Notes of Decisions
Cited in 9 cases (2 in the last 5 years), 1995–2021 · leading case: Ann Jenkins v. Mercy Hosp. Rogers, 2021 Ark. 211 (Ark. 2021).
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Ann Jenkins v. Mercy Hosp. Rogers, 2021 Ark. 211 (Ark. 2021). · cites it 12× “Ark. Code Ann. § 16-123-107 . But this prohibition does not apply “with respect to employment by a religious corporation, association, society, or other religious entity.”
Josh Brewington v. Ben Keener, 902 F.3d 796 (8th Cir. 2018). “" (citing Ark. Code Ann. § 16-123-103 (c) ) ); see also Hess v.”
Island v. Buena Vista Resort, 103 S.W.3d 671 (Ark. 2003). · cites it 2× “See Ark. Code Ann. § 16-123-103 (c).” Henderson, supra.”
McCuen v. Harris, 902 S.W.2d 793 (Ark. 1995). · cites it 4× “Section 16-123-103(a) provides that a governmental entity or person who, under color of law, deprives any person of rights, privileges and immunities secured by the Arkansas Constitution, shall be liable "in an action of law, a suit in equity, or other *801 proper proceeding .”
Davis v. Kimbel Mech. Sys., Inc., 322 F.R.D. 470 (W.D. Ark. 2017). · cites it 2× “, Ark. Code Ann. § 16-123-103 (c); Henderson v.”
Smith v. Foote's Dixie Dandy, Inc., 941 F. Supp. 807 (E.D. Ark. 1995). · cites it 4× “§ 1983 ; the Arkansas Civil Rights Act as codified at A.C.A. 16-123-103; and the civil tort of outrage.”
Brown v. United Parcel Serv., Inc., 2017 Ark. App. 501 (Ark. Ct. App. 2017). · cites it 4× “Ark. Code Ann. § 16-123-103 (c). Thus, appellants urge this court to hold that the jury should have been instructed that UPS had the burden of proof on this issue.”
Franke v. Little Rock, City of (E.D. Ark. 2021). · cites it 2× “”) (citing Ark. Code Ann. § 16-123-103 (c)); see also Hess v.”
Jodie Henderson v. Simmons Foods, Inc. (8th Cir. 2000). “See Ark. Code Ann. § 16-123-103 (c). -4- as a matter of law pursuant to Federal Rule of Civil Procedure 50, a motion for a new trial pursuant to Federal Rule of Civil Procedure 59, and a motion for remittitur.”
— Ark. Code Ann. § 16-123-103(a) — 2 cases
Ann Jenkins v. Mercy Hosp. Rogers, 2021 Ark. 211 (Ark. 2021). “Ark. Code Ann. § 16-123-107 . But this prohibition does not apply “with respect to employment by a religious corporation, association, society, or other religious entity.”
McCuen v. Harris, 902 S.W.2d 793 (Ark. 1995). “Section 16-123-103(a) provides that a governmental entity or person who, under color of law, deprives any person of rights, privileges and immunities secured by the Arkansas Constitution, shall be liable "in an action of law, a suit in equity, or other *801 proper proceeding .”
— Ark. Code Ann. § 16-123-103(c) — 1 case
Brown v. United Parcel Serv., Inc., 2017 Ark. App. 501 (Ark. Ct. App. 2017). “Ark. Code Ann. § 16-123-103 (c). Thus, appellants urge this court to hold that the jury should have been instructed that UPS had the burden of proof on this issue.”
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