The Nevada Legislature recently passed Senate Bill No. 177, which greatly expands the remedies available under Nevada’s anti-discrimination statute and provides other significant changes to the administrative process before the Nevada Equal Rights Commission (“NERC”). Senate Bill No. 177 passed both legislative houses with overwhelming support and Governor Sisolak signed the bill on May 21, 2019. The measure becomes effective on October 1, 2019.
Under existing Nevada law, the remedies an alleged victim of discrimination may recover are essentially limited to reinstatement and two years of back pay and benefits. Nevada Revised Statutes 233.170 currently provides that in the event NERC concludes that an unlawful employment practice occurred, NERC may “restore all benefits and rights to which the aggrieved person is entitled,” including, but not limited to, rehiring, back pay for a period not to exceed two (2) years, annual leave, sick leave, other fringe benefits or seniority, and interest. The same remedies are available to an aggrieved person seeking relief in district court following an unfavorable decision by NERC. Because these remedies are limited in comparison to those available under federal law for the same alleged acts, most Nevada litigants have in the past filed civil actions in federal court rather than in Nevada state courts. With the passage of Senate Bill No. 177 expanding the remedies available under state law, Nevada litigants may more often choose to pursue employment discrimination claims in state court because “the court may award the employee the same legal or equitable relief that may be awarded to a person pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., if the employee is protected by Title VII . . . or NRS 613.330.”
In addition to the remedies currently available under Nevada law, Title VII remedies include both compensatory and punitive damages based upon an employer’s size, as well as a longer period for an award of back pay (not more than two years prior to the filing of a charge of discrimination up to the date of the award). Compensatory damages available under Title VII may be awarded for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. It appears that litigants claiming discrimination on a basis not explicitly protected under Title VII (such as age, disability, sexual orientation, or gender identity or expression) will nevertheless be able to seek the same remedies available under Title VII as long as those bases are protected under NRS 613.330. Moreover, these same remedies will also be available to claims alleging a violation of Nevada’s Pregnant Workers’ Fairness Act, which prohibits discrimination against pregnant employees and requires employers to provide reasonable accommodations to employees due to a condition related to pregnancy, childbirth or a related medical condition. While it is unclear whether the statutory caps applicable to Title VII claims, which limit the combined value of compensatory (e.g., emotional distress) and punitive damages based on the size of the employer by its employee numbers, as set forth in 42 U.S.C. §1981a and based upon an employer’s size, will also be imposed for state claims, Nevada employers may find themselves defending more employment claims in state court in the future.
Additionally, Senate Bill No. 177 requires NERC to notify charging parties that they may request a right-to-sue notice if at least one hundred eighty (180) days have passed without NERC issuing a determination. The law requires NERC to issue a right-to-sue notice upon such request as well as following a determination concluding that an unlawful employment practice did not occur. Similar to the procedures under federal law, NERC’s right-to-sue notice will require a person to bring a civil action in district court within ninety (90) days after the person’s receipt of the right-to-sue notice. Until Senate Bill No 177 becomes effective, NERC is not authorized to issue right-to-sue notices, which are currently issued by the United States Equal Employment Opportunity Commission (“EEOC”) for charges filed dually with NERC and the EEOC. As indicated above, these changes will apply to all Nevada employers on October 1, 2019.