Most small businesses know that the federal anti-discrimination laws do not apply to them. For example, to be covered under Title VII of the Civil Rights Act or under the Americans with Disabilities Act, you must employ 15 persons. You must employ 20 persons to be covered by the Age Discrimination in Employment Act.

Oklahoma has a law which prohibits discrimination in the workplace and similarly has a small employer exception. This law, adopted by the Oklahoma Legislature, provides administrative remedies (meaning employees can file a charge with the Oklahoma Human Rights Commission). This law also provides a person with a right to bring a lawsuit based upon claims of handicap discrimination in employment.

For the last several decades, employees have also been able to bring a tort lawsuit (often referred to as a Burk tort) for wrongful discharge based upon their belief that the discharge was due to illegal discrimination. The Burk tort was not enacted by the Oklahoma Legislature, but crafted by the Oklahoma Supreme Court. Since 1995, the Oklahoma courts have held that small employers are exempt from a Burk tort.

Those days are over.

On Tuesday, November 10, the Oklahoma Supreme Court issued its opinion in Smith v. Pioneer Masonry, Inc. Pioneer is a small employer (less than 15 employees). Mr. Smith sued Pioneer alleging that he was subjected to racial discrimination and harassment which led to his constructive discharge. Generally speaking, a constructive discharge occurs when the employee proves that the working conditions were so intolerable that a reasonable person would have no option but to resign.

Pioneer moved to dismiss the lawsuit based upon the 1995 case which held that small employers are exempt from the Burk tort. In response, the Oklahoma Supreme Court overruled its 1995 decision and held that “the common law provides a Burk tort to all victims of racial discrimination regardless of the number of employees.”

What does this mean for small employers? Everything. You may now be sued for discrimination based upon race, color, religion, sex, national origin, age, or handicap if that discrimination (or harassment) results in the employee being discharged or constructively discharged.

In case you have not been following discrimination laws as a small employer, here are a few of the highlights:

• An employee may bring a Burk tort for up to two years after his discharge or constructive discharge.
• An employee who brings a Burk tort will generally seek back wages, emotional distress damages, and punitive damages.
• Even if you ultimately win the lawsuit, you will be unable to recover the fees you paid your attorney to handle the matter.
• Because of bullet points 1, 2, and 3, you should take extra care to ensure your workplace is free from discrimination or harassment based upon race, color, religion, sex, national origin, age, or handicap. You should review the reasons why a person is discharged and satisfy yourself that discrimination was not part of the decision.
• As you grapple with running your business in light of this change, please let us know if we can help. Our employment team can assist you with training supervisors on discrimination, drafting policies prohibiting discrimination, or simply exploring a situation to identify legal risks of certain decisions. Ultimately, you must run your business. To do that, you should be aware of the possible and probable consequences of your decisions.

By Kristen L. Brightmire, kbrightmire@dsda.com