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Oklahoma's employment discrimination laws rewritten

McAfee & Taft EmployerLINC Employment Law Update - May 19, 2011

They say you can’t put the genie back in the bottle, but that’s not always true. After several years of effort, the Oklahoma Legislature has finally rewritten Oklahoma’s employment discrimination laws, and put the “genie” of public policy tort back in the bottle, so to speak.

In short, the Legislature significantly revised the Oklahoma Anti-Discrimination Act to eliminate public policy tort lawsuits based on traditional protected classifications, such as when a former employee claims termination based on age, race, national origin, gender, or disability, or retaliation related to those protected classifications, and then demands a million dollars for emotional distress and punitive damages. Now, there will be no more of that.

Labor and employment attorneys from McAfee & Taft, led by Sam Fulkerson, played a major role in assisting The State Chamber of Oklahoma in revising the Oklahoma Anti-Discrimination Act and pushing the new law through the legislative process.

Highlights of the new law include the following:

  • The Oklahoma Anti-Discrimination Act now provides for the “exclusive remedy” for individuals alleging discrimination in employment on the basis of race, color, national origin, sex, religion, creed, age, disability or genetic information, and related retaliation claims.
  • All common law claims, such as public policy tort, are eliminated and persons may only bring statutory claims under the Act.
  • The definition of “employer,” i.e. persons or entities that can be subject to statutory claims, has been revised to exclude individuals; only legal entities, institutions or organizations may be named as defendants in such claims.
  • The definition of “employee” has been revised as to explicitly exclude independent contractors.
  • Employers of any size, to include employers with only one employee, may be subject to statutory claims (which was necessary because the Oklahoma Supreme Court has interpreted the Oklahoma Constitution to require that all employers, regardless of size, be subject to some type of liability for employment discrimination).
  • The former statutory claim for handicap discrimination under the Act has been eliminated.
  • The Act has been revised to explicitly incorporate all defenses available to employers under federal employment law.
  • Damages in statutory claims have been limited to equitable relief, to include injunctions, such as orders of reinstatement or hiring of employees, back pay, and liquidated damages limited to a doubling of back pay. Further, the Act no longer allows for emotional distress damages or punitive damages under statutory claims.
  • The statute explicitly allows the court to allow either a prevailing plaintiff or defendant a “reasonable attorney” fee.”

Oklahoma Governor Mary Fallin signed the statutory revision into law on May 18, 2011, and the new law goes into effect November 1, 2011. Oklahoma employers still will be subject to public policy tort claims, with emotional distress and punitive damages exposure, through October 31, 2011. From that point forward, however, the types of claims, and available relief, for employment discrimination claimants will be limited as described above.

As always, the attorneys at McAfee & Taft stand ready to assist you with any questions you may have. To learn more about these changes as well as other workplace-related legislation which made its way through the Oklahoma Legislature this year, please make plans to join us for a complimentary EmployerLINC webinar on Thursday, June 9, 2011, titled “For Better or Worse: Oklahoma Legislature Lays Down New Laws for Employers.”


This employment law update has been provided for information of clients and friends of McAfee & Taft. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this newsletter without seeking professional counsel.