Former KY State Rep John Arnold and Other Elected Officials May Face Personal Liability for Alleged Retaliation

Cash BagKentucky attorney Thomas Clay, who represents the two women who claim former Kentucky state representative John Arnold sexually harassed them, says that Mr. Arnold’s resignation does not end the matter.  Mr. Clay is not satisfied with the internal investigation conducted by the Legislative Research Commission (the women’s employer) calling it a “farce” and “smoke screen” and says that he is continuing to gather information about the “culture of sexual entitlement” in the Kentucky state legislature.

Unfortunately, these types of claims of alleged harassment by elected officials are not uncommon (e.g., former San Diego Mayor Bob Filner’s saga).

What is unusual in this case, from an employment law perspective, is that according to Mr. Clay under Kentucky’s Civil Rights Act, KRS 344.280 an individual can be held personally liable for retaliation.  Significantly, this law also does not (unlike Title VII under federal law) contain any cap on damages.  Mr. Clay says that he is currently gathering evidence to support illegal retaliation against his clients not only by Mr. Arnold but by other elected officials and anticipates filing a lawsuit.

It would seem that Mr. Clay knows what he’s talking about on this point.  In 1998, he represented the plaintiffs in a race discrimination and retaliation case filed against the Jefferson County Fiscal Court in Louisville, KY and two of its employees individually.  The two employees’ moved to have the retaliation claims against them dismissed individually but the trial court denied their motion.  In affirming the trial court’s denial of the employees’ motion to dismiss, the Kentucky Court of Appeals noted that the Kentucky statute does not “mirror” the retaliation provision of Title VII, which forbids retaliation by “an employer.”  Rather, § 344.280 forbids retaliation by “a person.” As such, the court concluded that “[t]he Kentucky retaliation statute plainly permits the imposition of liability on individuals.”

The case ultimately went to trial and  Mr. Clay won a jury verdict that was affirmed on appeal against both the employer and one of the employees.  To date, he reports that he has collected over $945,000 in damages and attorneys fees and is seeking additional damages for lost interest.

In discussing the case with Mr. Clay, he also noted that under Kentucky law it is actually also a crime to illegally retaliate against someone who has filed a complaint of sexual harassment.  

In addition to facing a possible lawsuit for personal liability, Mr. Arnold’s actions are also being reviewed by a five member committee appointed by House Speaker Greg Stumbo.  According to an article in the Courier-Journal, the committee has authority to take evidence and call witnesses.  Disciplinary action could include a call to censure or fine Mr. Arnold.

Needless to say, this promises to be an interesting case to watch.  One issue that comes to mind is what happens to any retirement benefits to which Mr. Arnold may be entitled if he is found either civilly or criminally liable for illegal retaliation.

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