Employment: A New Way You Can Be Sued for Discrimination in Oklahoma
Federal Law. If you employ a minimum number of employees (often 15 or 20), an employer can be sued if it discriminates against an employee or applicant on the basis of race, color, national origin, sex, religion, creed, age, disability, or genetic information. You remember the laws: Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, etc.
Oklahoma Common Law (a law declared by the Oklahoma courts). In addition, Oklahoma allowed a lawsuit to be brought for wrongful discharge (but not other forms of discrimination such as failure to hire). For decades, Oklahoma required that the employer have the same number of employees as under the various federal laws in order to be sued for wrongful discharge. Then, in 2009, the Oklahoma Supreme Court decided that any Oklahoma employer, regardless of the number of employees, could be sued for wrongful discharge.
Oklahoma Statutory Law (a law passed by the Oklahoma Legislature and approved by the Governor). Well, now the Oklahoma Legislature has weighed in as well. A new law will go into effect on November 1, 2011, which provides Oklahoma employees with even more ways to sue their employer. The new law provides remedies for persons alleging "discrimination in employment on the basis of race, color, national origin, sex, religion, creed, age, disability, or genetic information."
A couple of things you'll want to know:
As the Legislature has declared this to be "exclusive," we are assuming that employees will no longer be able to sue under the Oklahoma Common Law theory. So, a discharge prior to November 1 can be the subject of a common law claim of wrongful discharge. On or after November 1, discriminatory actions may be challenged under the new statutory law.
To be an "employer," under this new law, you only have to have one (1) employee.
Discrimination includes to fail or refuse to hire, to discharge, or otherwise discriminate against an individual with respect to compensation or the terms, conditions, privileges or responsibilities of employment or to limit, segregate, or classify an employee or applicant for employment in a way which would deprive or tend to deprive an individual of employment opportunities because of race, color, national origin, sex, religion, creed, age, disability, or genetic information, unless the employer can demonstrate that accommodation for the disability would impose an undue hardship on the operation of its business.
Before being able to sue, a person must file a charge of discrimination with the Oklahoma Human Rights Commission (OHRC) or the Equal Employment Opportunity Commission (EEOC). This must occur within 180 days from the date of the alleged discrimination (this is shorter than the 300 days a person is allowed under federal law).
If the matter is not resolved to the person's satisfaction at the agency-level, the person may bring a lawsuit in Oklahoma courts and request a jury trial.
If you lose, you may be required to reinstate, hire, promote, etc. the person. You may also be required to pay back pay (that amount of money which the person would have earned from the date of the discrimination through trial, less that amount which the person did or with reasonable diligence could have earned during that same time period). You may be required (as a form of punishment) to pay "liquidated damages" which is generally the exact amount of back pay - so your total would be 2 x back pay.
The law states that the court may order the losing party to pay the prevailing party's attorneys fees. NOTE: Many federal laws say this as well but, in practice, employers rarely recover their attorneys' fees if they win and almost always pay if they lose.
In short, Oklahoma has passed a law in which it tries to mimic all the protections provided by federal law with one notable difference - it applies to all employers, regardless of its size.
By Kristen L. Brightmire, firstname.lastname@example.org