By Paula Quillin.
Beginning November 1, 2011, the Oklahoma Anti-Discrimination Act (OADA) will provide the exclusive remedy for discrimination in violation of the Act.
The OADA prohibits discrimination based on race, color, national origin, sex, religion, creed, age, disability, or genetic information. Formerly, Oklahoma law allowed employees who were discriminated against because of their status (race, age, gender, disability) to file tort claims in addition to federal and state statutory claims. Requiring employees to assert claims under the OADA rather than as a “Burk” tortclaim eliminates many remedies formerly available to employees. The OADA allows injunctive relief. Damages are limited to backpay and liquidated damages, less what the employee earned or could have earned with reasonable diligence. No damages are permitted for emotional distress, and no punitive damages are available. Significantly, attorney fees are available to either employer or employee, whichever party prevails.
Employers subject to the OADA include all organizations such as corporations and partnerships, regardless of size. Individuals are not subject to the OADA. Employees have 180 days after a discriminatory act within which to file a complaint with the Oklahoma Human Rights Commission or EEOC. If the charge of discrimination isn’t resolved within 180 days, the employee is entitled to a Notice of Right to Sue. An employee may not file suit if the employee has not first filed with the OHRC or EEOC.
The amendments to the OADA do not have any effect on federal claims. Employees who have been discriminated against can still sue in federal court under laws prohibiting discrimination based on age, race, gender, disability, and other statuses. Further, the amendment to the OADA does not affect an employee’s ability to file a “Burk” tort claim for whistleblowing activities.
These amendments affect small employers (employing less than 15 or 20 employees), for which the OADA will likely provide the sole remedy for employees alleging discrimination.
A complete copy of the statute can be found here.