Amendments to Oklahoma’s Anti-Discrimination Act (OADA), many of which are favorable to employers, are set to go into effect November 1, 2011. The OADA amendments, will, most significantly, abrogate common law tort liability for discrimination claims, allowed by the Oklahoma Supreme Court under the Burk tort theory. This should help reduce exposure and uncertainty on the part of employers in defending discrimination claims. Although some types of employment discrimination claims brought under federal law may still carry the potential for compensatory and punitive damages, the amendments will preclude plaintiffs from engrafting on their claims allegations seeking compensatory and punitive damages under Oklahoma common law.
The amendments will also change the law in a number of other respects, including:
- The OADA’s statutory remedies are exclusive, and all common law remedies are abrogated and replaced with the specific statutory remedies.
- Discrimination on the basis of “genetic information” has been added.
- The definition of “employer” exclude individuals and allows suits only against legal entities, institutions or organizations.
- The definition of “employee” excludes independent contractors.
- Applicants for employment who are discriminated against are given a cause of action.
- Employers of any size are be subject suit.
- Employers are entitled to raise all defenses available under the applicable federal statutes.
- Aggrieved parties must file a charge of discrimination within 180 days from the last date of alleged discrimination and exhaust available administrative remedies, and must file suit within 90 days of receiving a notice of right to sue.
- Remedies are limited to injunctive relief, such as an order of reinstatement of a discharged employee or requiring the hiring of the applicant, back pay, and “an additional amount as liquidated damages”.
- Interim earnings or “amounts earnable with reasonable diligence” will reduce back pay.
- If there are “legitimate reasons” other than discrimination for the action taken by the employer, the individual is not entitled to any relief.
- The court “may” allow either a prevailing plaintiff or defendant a “reasonable attorney” fee.”
As noted, most of the amendments are helpful to employers, particularly the abrogation of common law remedies. The effect may be for aggrieved individuals to go back to exclusively pursuing federal statutory remedies for various types of employment discrimination.