Ark. Code Ann. § 16-123-107

Research References

ALR.

Discrimination against pregnant employee as violation of state fair employment laws. 99 A.L.R.5th 1.

What constitutes substantial limitation on major life activity of working for purposes of state civil rights acts. 102 A.L.R.5th 1.

Pursuit of nonjudicial remedy for employment discrimination as amounting to election against judicial remedy. 103 A.L.R.5th 557.

Necessity of, and what constitutes, employer's reasonable accommodation of employee's religious preference under state law. 107 A.L.R.5th 623.

Web Site as “Public Accommodation” for Purposes of Federal or State Civil Rights Statutes. 7 A.L.R.7th Art. 1 (2015).

Who is “Supervisor” for Purposes of Racial Harassment Claim Under Title VII of Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.) Imputing Liability to Employer. 92 A.L.R. Fed. 2d 91 (2015).

What is Reasonable Accommodation of Deaf or Hearing-Impaired Employee for Purposes of Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. 2 A.L.R. Fed. 3d Art. 1 (2016).

Identity of Commenter and Relationship of Remark to Employment Decision as Determinants of Relevance of Stray Remark or Comment in Title VII Action for Sex Discrimination. 4 A.L.R. Fed. 3d Art. 7 (2016).

Stray Remark or Comment Involving Male Plaintiffs in Title VII Action for Sex Discrimination. 4 A.L.R. Fed. 3d Art. 8 (2016).

Employment Discrimination Against Obese Persons as Violation of Americans with Disabilities Act of 1990 or Rehabilitation Act of 1973. 4 A.L.R. Fed. 3d Art. 10 (2016).

Stray Remark or Comment Toward Female Plaintiffs Regarding Pregnancy, Child-Rearing, and Related References in Title VII Action for Sex Discrimination. 6 A.L.R. Fed. 3d Art. 3 (2016).

Validity, Construction, and Application of Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-1(a), 2000e-2(e)(2)) Exempting Activities of Religious Organizations from Operation of Title VII Equal Employment Opportunity Provisions. 6 A.L.R. Fed. 3d Art. 6 (2016).

Construction and Application of Four-Fifths Rule for Finding Evidence of Adverse Impact in Federal Employment Discrimination Cases. 7 A.L.R. Fed. 3d Art. 1 (2016).

Stray Remark or Comment Involving General References Toward Female Plaintiffs in Title VII Action for Sex Discrimination. 7 A.L.R. Fed. 3d Art. 2 (2016).

Rights of Workers with Disabilities at Sheltered Workshops or Work Activity Centers under Federal Civil Rights Provisions. 8 A.L.R. Fed. 3d Art. 1 (2016).

Employee's Unpaid Leave as Reasonable Accommodation Under Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. 8 A.L.R. Fed. 3d Art. 2 (2016).

Application of Title VI of Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) or Regulations Promulgated Thereunder (40 C.F.R. §§ 7.10 et seq.) to Alleged Racial or National Origin Discrimination with Respect to Environmental Issues. 9 A.L.R. Fed. 3d Art. 1 (2016).

Stray Remark or Comment Involving Overt Sexual References Toward Female Plaintiffs in Title VII Action for Sex Discrimination. 9 A.L.R. Fed. 3d Art. 5 (2016).

Failure to Hire Deaf or Hearing-Impaired Job Applicant as Violation of Americans With Disabilities Act, 42 U.S.C. §§ 12101 et seq. 9 A.L.R. Fed. 3d Art. 7 (2016).

Employer's Dress Policy as Religious Discrimination Under Federal Law. 12 A.L.R. Fed. 3d Art. 5 (2016).

National Security Exception to Employment Discrimination Provisions of Title VII of Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(g)). 12 A.L.R. Fed. 3d Art. 9 (2016).

Employer's Grooming Policy as Religious Discrimination under Federal Law. 13 A.L.R. Fed. 3d Art. 1 (2016).

Discrimination Against Credit Applicant on Basis of Race or National Origin Under Equal Credit Opportunity Act (15 U.S.C. §§ 1691 et seq.). 13 A.L.R. Fed. 3d Art. 9 (2016).

Discrimination Based on Marital Status Under Equal Credit Opportunity Act (15 U.S.C. §§ 1691 et seq.) as Defense to Liability for Financial Obligations. 16 A.L.R. Fed. 3d Art. 9 (2016).

Rights of Employees with Bipolar Disorder Under Americans with Disabilities Act, Rehabilitation Act, and Family and Medical Leave Act. 17 A.L.R. Fed. 3d Art. 5 (2016).

Ark. L. Rev.

Madeline L. Kurrus, Comment: Taking It Personally: Holding Individual Supervisors Liable for Retaliation Under the Arkansas Civil Rights Act, 65 Ark. L. Rev. 873 (2012).

U. Ark. Little Rock L. Rev.

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

Case Notes

In General.

Claims of sexual harassment premised under the Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 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).

Attorney's fees imposed on a debtor as part of a civil rights action against him were dischargeable in bankruptcy where the Arkansas Civil Rights Act of 1993, § 16-123-101 et seq., that the debtor allegedly violated did not require both willful and malicious conduct to impose liability, and both willfulness and malice were required to except a debt pursuant to 11 U.S.C. § 523(a)(6). Solomon v. Jarrett (In re Jarrett), 303 B.R. 816 (Bankr. E.D. Ark. 2003).

After employee received unemployment benefits based on a finding of no work-related misconduct, collateral estoppel did not bar the employer from asserting, in a racial discrimination case, that the employee was fired for inappropriate behavior; an administrative finding that the employee was discharged for reasons that did not disqualify him for unemployment benefits under § 11-10-514(a)(1) did not address the issue of whether an improper racial motive was present within the meaning of subdivision (a)(1) of this section and, absent evidence of racial animus, summary judgment for the employer was proper. Crockett v. Counseling Servs. of E. Ark., Inc., 85 Ark. App. 371, 154 S.W.3d 278 (2004).

“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).

Appellate Review.

Because employees failed to object to the jury instructions on the elements of their discrimination claims, they waived their argument that the trial court erred in interpreting the Arkansas Civil Rights Act to require that the element of intent be proved. Brown v. UPS, Inc., 2017 Ark. App. 501, 531 S.W.3d 427 (2017).

Claim Dismissed.

No civil rights violation where the employer articulated legitimate nondiscriminatory reasons for terminating employee and employee failed to produce any evidence that these reasons were pretextual. Winkle v. Southwestern Bell Tel. Co., 195 F.3d 418 (8th Cir. 1999).

The trial court properly granted summary judgment to the defendant employer on the gender discrimination claims of two employees where one employee failed to adduce sufficient evidence of pretext and offered no evidence from which a jury could reasonably infer that gender considerations motivated the employer's actions in selecting other more favorably evaluated candidates over her for a promotion, and the other employee advanced no additional evidence to support an inference that, with regard to her, the selection process was anything but fair and impartial. Gentry v. Georgia-Pacific Corp., 250 F.3d 646 (8th Cir. 2001).

Employee who claimed to have been discriminated against on the basis of race and gender following the employee's return from military duty failed to sufficiently allege an adverse employment action as required to establish a claim under the Arkansas Civil Rights Act, § 16-123-101 et seq.; the record did not support an allegation that the employee was not put back into the position that the employee held prior to military duty, and other alleged actions, including a delay in providing certain items and a temporary reassignment for training, did not affect material aspects of employment. Clegg v. Ark. Dep't of Corr., 496 F.3d 922 (8th Cir. 2007).

Claim Not Dismissed.

Plaintiff's complaint not dismissed even though she cited to the wrong section of this chapter, where the plaintiff's allegations were specific and the complaint stated that plaintiff was asserting a claim parallel to the federal claim, and thus the defendant had actual notice of her claim. Smith v. Foote's Dixie Dandy, Inc., 941 F. Supp. 807 (E.D. Ark. 1995).

Damages.

An award of punitive damages was proper where the court also awarded compensatory damages under alternative theories of breach of contract and retaliation in violation of the Civil Rights Act. Odom Antennas, Inc. v. Stevens, 61 Ark. App. 182, 966 S.W.2d 279 (1998).

District court properly vacated a jury's award for emotional distress damages because even though the jury found for the employee on his Arkansas Civil Rights Act (ACRA) claim for retaliation, it did so based solely on the elements of a claim for FMLA retaliation, which was not a viable basis for an ACRA claim. Jackson v. City of Hot Springs, 751 F.3d 855 (8th Cir. 2014).

Disability Discrimination.

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).

There is no remedy under § 11-9-101 et seq. for an employee who is terminated from his or her job on the basis of the work-related disability after the end of the rehabilitation and compensation period; thus, the exclusive-remedy provision of § 11-9-101 et seq. does not preclude an employee from bringing an action under this subchapter based upon employer's alleged discrimination in terminating her on the basis of her permanent restrictions and impairments. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

The plaintiff established a statutory violation where a county courthouse did not have an elevator, ramp, or other device making the second floor accessible to anyone with disabilities involving mobility, the public entrance doors to the courtroom were not wide enough for a wheelchair to pass through, and the restrooms on the second floor were not accessible to wheelchair bound individuals. Matthews v. Jefferson, 29 F. Supp. 2d 525 (W.D. Ark. 1998).

There was sufficient evidence for the jury to reasonably conclude that the employee was discriminated against because of a disability when the employee offered evidence of a disability that limited the employee's ability to perform a life activity, and that the employee was able to do the employee's job with an accommodation, but the employer refused to let the employee return to work. Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002).

Where employee with depression sought meeting agendas as reasonable accommodation, employer was not entitled to judgment as a matter of law on the failure-to-accommodate claims because there was record support for the jury's findings that (1) employee was disabled due to depression and anxiety that substantially limited employee's ability to think and concentrate, (2) employer failed to engage in a good-faith interactive process with employee, and (3) employee's request was reasonable. Battle v. UPS, 438 F.3d 856 (8th Cir. 2006).

Where a terminated employee contended that his discharge was motivated by discrimination, in violation of the Americans with Disabilities Act and the Arkansas Civil Rights Act, a remand was necessary because the appellate court was unable to determine if a circuit court properly evaluated the case under the McDonnell Douglas framework. There was no mention in the circuit court's order about a prima facie case of discrimination, a legitimate, nondiscriminatory reason for the discharge, or pretext for discrimination. Alexander v. Eastern Tank Servs., 2016 Ark. App. 185, 486 S.W.3d 813 (2016).

Evidence.

In an employee's action claiming racial harassment and a racially motivated termination in violation of 42 U.S.C. § 2000e-2 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and § 16-123-107 of the Arkansas Civil Rights Act, § 16-123-101 et seq., the district court did not err in admitting evidence of racist remarks and threatening actions in the workplace of which the employee was not aware; the evidence was relevant under Fed. R. Evid. 401 and 402 because the evidence of the extent of the hostile environment was probative on the matter of managerial motives and on the employee's eligibility for punitive damages. Williams v. ConAgra Poultry Co., 378 F.3d 790 (8th Cir. 2004).

Employer was entitled to summary judgment on an employee's failure to promote claim under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 42 U.S.C. §§ 1981, 1983, and the Arkansas Civil Rights Act, § 16-123-107 et seq., because the undisputed facts showed that the person who was promoted to the position at issue was substantially more qualified than the employee both in education and experience and there was no evidence of discrimination based on race or sex. Tabb v. Allen, No. 5:06CV00316 JLH, 2009 U.S. Dist. LEXIS 10156 (E.D. Ark. Feb. 4, 2009).

Employer was entitled to summary judgment on an employee's sex and race discrimination claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 42 U.S.C. §§ 1981, 1983, and the Arkansas Civil Rights Act, § 16-123-107 et seq., involving the employer's failure to assign her a vehicle and fully reimburse her for certain mileage, because there was no evidence that discrimination based on race or sex influenced these decisions. Tabb v. Allen, No. 5:06CV00316 JLH, 2009 U.S. Dist. LEXIS 10156 (E.D. Ark. Feb. 4, 2009).

Pursuant to the Arkansas Civil Rights Act of 1993, §§ 16-123-101 — 16-123-108, the trial court did not err in granting the employer's motion for summary judgment on the employer's gender discrimination claim as the employee was not eligible for leave under FMLA or pre-FMLA as she had only been with the company a short time; the employee did not proffer evidence to prove that the explanation provided by the employer was pretextual. Greenlee v. J.B. Hunt Transp. Servs., 2009 Ark. 506, 342 S.W.3d 274 (2009).

Substantial evidence supported the jury's verdict in favor of an employer because employees failed to offer sufficient evidence to infer discriminatory animus was the real reason for the decision not to promote; there was sufficient evidence for the jury to be charged with an “honest belief” instruction because the decision makers involved in the promotion decision testified they honestly believed the employees were ineligible for promotion or less qualified than other candidates. Brown v. UPS, Inc., 2017 Ark. App. 501, 531 S.W.3d 427 (2017).

Gender Discrimination.

A supervisor's statement that he was directed to terminate an employee because of her pregnancy established a prima facie case of discrimination. Rice v. Golf Enters., Inc. (In re McElhanon), 207 B.R. 188 (Bankr. E.D. Ark. 1997).

The trial court properly granted summary judgment to the defendant bank in an action alleging gender discrimination where (1) the plaintiff made out a prima facie case, but (2) the bank cited its low profitability and the need to reduce operating costs, especially in personnel, as a legitimate, nondiscriminatory factor for discharging the plaintiff, as well as refusing to create or re-fill three additional positions at the bank, and (3) the plaintiff failed to meet her burden to present facts which if proven at trial would permit a jury to conclude that the bank's proffered reason was pretextual and that its actual reason was discriminatory. Flentje v. First Nat'l Bank, 340 Ark. 563, 11 S.W.3d 531 (2000).

Four elements are necessary to establish a prima facie case of gender discrimination based on pregnancy; the party must show (1) that she is within the protected class; (2) that she met applicable job qualifications; (3) that her employment was terminated; and (4) that there is some “additional showing” that pregnancy was a factor in her termination. Flentje v. First Nat'l Bank, 340 Ark. 563, 11 S.W.3d 531 (2000).

This section is not restricted in application only to getting a job and being free from discriminatory discharge; this section also creates a right to be paid for that employment without discrimination on the basis of gender. Broadus v. O.K. Indus., Inc., 226 F.3d 937 (8th Cir. 2000).

Former employee's sex discrimination claim under this section of the Arkansas Civil Rights Act failed, given evidence that the employee was terminated for sexually harassing co-workers and then filing untruthful sexual harassment complaints against those co-workers. Nothing in the record indicated that the officials who decided to terminate the employee lacked a good-faith belief that the employee committed sexual harassment and was untruthful, and the evidence did not raise a reasonable inference that sex discrimination motivated the employee's termination. McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3d 855 (8th Cir. 2009).

District court did not err in denying an employer's motion for judgment as a matter of law as to an employee's sex and disability discrimination claims under 42 U.S.C. § 2000e-2 and this section because a legally sufficient basis existed for a reasonable jury to determine that the employee had been discriminated against by the employer, and the jury was not required to accept the employer's proffered reasons for the employee's dismissal; the district court did not manifestly abuse its discretion in denying a motion for remittitur because the appellate court could not conclude that the award of $100,000 for mental anguish to the employee was monstrous, shocking, or grossly excessive considering precedent and the record made in the case. Hudson v. United Sys. of Ark., 709 F.3d 700 (8th Cir. 2013).

In an employment discrimination case in which an employer moved to dismiss, the district court rejected the employer's argument that because the Arkansas courts had rejected the so-called continuing-tort theory, and because that theory was analogous to the paycheck rule, the paycheck rule does not apply to the Arkansas Civil Rights Act of 1993, § 16-123-101 et seq.Holt v. Deer-Mt. Judea Sch. Dist., 135 F. Supp. 3d 898 (W.D. Ark. 2015).

In a gender discrimination action, none of a former employee's purported direct evidence established the required “specific link” between his termination and gender-based animus. The absence of conclusive evidence that the employee violated internet and conduct policies was insufficient to prove improper termination because the central question in determining if termination was proper was not whether the employee actually engaged in prohibited conduct, but whether the employer believed so in good faith. Rinchuso v. Brookshire Grocery Co., 944 F.3d 725 (8th Cir. 2019).

Racial Discrimination.

Employee's racial discrimination claim based on failure to promote failed because (1) the employer allegedly selected the other applicant based on, inter alia, experience, interview answers, and connections to government agencies, and (2) the employee failed to show pretext based on the employee's qualifications compared to the chosen applicant, false and shifting explanations for the decision, and other instances of discrimination. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782 (8th Cir. 2011).

Employee's racial discrimination claim based on the employee's termination for insubordination failed because the employee did not show pretext based on, inter alia, allegations regarding disparate disciplinary treatment of several other employees who were not similarly situated, a supervisor's treatment of the employee, and the employer's explanations for the decision. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782 (8th Cir. 2011).

Plaintiff cardiologist's comparators were not similarly situated to him, and he failed to provide any evidence giving rise to an inference that a defendant hospital association, executive officer, and other doctors racially discriminated against him in violation of 42 U.S.C. § 1981 and the Arkansas Civil Rights Act, or conspired to discriminate against him in violation of 42 U.S.C. § 1985(3), when they revoked his hospital privileges based on plaintiff's behavior toward hospital staff, his poor record of patient care, and his failure to maintain proper medical records. Davis v. Jefferson Hosp. Ass'n, 685 F.3d 675 (8th Cir. 2012).

Racial Harassment.

Where a white employee resigned based on condescending emails, denial of day shifts, and a supervisor's alleged attempt to implicate the employee in the theft of cash, the racially hostile work environment claim failed because the alleged verbal harassment was neither frequent nor severe, and the employee failed to offer sufficient evidence that the employee was constructively discharged. Helton v. Southland Racing Corp., 600 F.3d 954 (8th Cir. 2010).

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).

Former employee failed to establish sexual harassment in violation of this section, the Arkansas Civil Rights Act, because her supervisor's comments that he controlled her job and she should be nice to him and his acts of rubbing her shoulders were not sufficiently severe or pervasive to create a sexually hostile work environment. Anderson v. Family Dollar Stores of Ark., Inc., 579 F.3d 858 (8th Cir. 2009).

Former employee failed to establish quid pro quo sexual harassment in violation of this section, the Arkansas Civil Rights Act, because she did not show that she suffered an adverse tangible employment action as a result of her refusal to submit to an implied or inferred demand for sexual favors from her supervisor. Anderson v. Family Dollar Stores of Ark., Inc., 579 F.3d 858 (8th Cir. 2009).

Employer was not entitled to summary judgment on a former employee's sex discrimination claims because genuine issues of material fact remained as to whether the employee truck driver subjectively felt abused by a coworker driver and whether the employer was aware of the coworker's conduct and failed to take appropriate action. Nichols v. Tri-National Logistics, Inc., 809 F.3d 981 (8th Cir. 2016).

Statute of Limitations.

One-year limitation period of the Arkansas Civil Rights Act is inconsistent with 42 U.S.C. § 1981's interest in providing relief to victims of racial discrimination; thus, former employee's claim of race discrimination under 42 U.S.C. § 1981 was governed by three-year statute of limitations applicable to personal injury actions, § 16-56-105, not the one-year statute of limitations contained in subdivision (c)(3) of this section. Thompson v. Wal-Mart Stores, Inc., 314 F. Supp. 2d 842 (W.D. Ark. 2004).

Plaintiff's claims brought under 42 U.S.C. § 1981 were governed by the four-year statute of limitations set forth in 28 U.S.C. § 1658, rather than the one-year statute of limitations set forth in the Arkansas Civil Rights Act, specifically subdivision (c)(3) of this section; accordingly, the district court improperly granted summary judgment with respect to such claims. Jackson v. Homechoice, Inc., 368 F.3d 997 (8th Cir. 2004).

Former employee filed her Equal Employment Opportunity Commission (EEOC) charge on December 5, 2006, far more than 180 days after her supervisor's last offensive email to her and the employee did not allege sexual harassment acts within the statutory period; her federal claim for sexual harassment was therefore time barred. The employee filed her suit on December 26, 2007, more than one year after the last date of alleged sexual harassment; because her EEOC charge alleging sexual harassment was untimely filed, the employee could not rely on it to support the timeliness of her Arkansas Civil Rights Act, § 16-123-101 et seq., harassment claim. Burkhart v. Am. Railcar Indus., Inc., 603 F.3d 472 (8th Cir. 2010).

Employment retaliation claim under the Arkansas Civil Rights Act, § 16-123-108, was subject to the three-year limitation period applicable when a statutory claim had no limitation period, § 16-56-105, rather than the one-year limitation provided in subsection (c) of this section. Smith v. ConAgra Foods, Inc., 2013 Ark. 502, 431 S.W.3d 200 (2013).

Former employee's amended discrimination complaint was timely filed because the original complaint was filed within the allotted 90-day time period and the amended complaint related back to the date of the original complaint; the amended complaint clearly arose out of the conduct, transaction, or occurrence set out in the original pleading. Orr v. City of Rogers, 232 F. Supp. 3d 1052 (W.D. Ark. 2017).

Former employee failed to properly exhaust his remedies in his suit alleging age and race discrimination because the employee filed his complaint more than one year after every alleged instance of discrimination, and while the employee filed suit within 90 days of receiving a right-to-sue letter from the EEOC, that letter arose from a charge that was either untimely or otherwise provided an insufficient basis for the claims he brought. Kirklin v. Joshen Paper & Packaging of Ark. Co., 911 F.3d 530 (8th Cir. 2018).

Venue.

Prior to the 2001 passage of Ark. Const. Amend. 80, § 19(b)(1) merging chancery and circuit courts, once judgment was entered in the circuit court, the employee was barred by res judicata from transferring the case to chancery court for imposition of further equitable remedies unavailable in the circuit court. Clark v. Farmers Exch., Inc., 347 Ark. 81, 61 S.W.3d 140 (2001).

Cited: Robinson v. Sears, Roebuck & Co., 111 F. Supp. 2d 1101 (E.D. Ark. 2000); Crone v. UPS, 301 F.3d 942 (8th Cir. 2002).