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Changes in enforcement of Oklahoma’s employment discrimination laws

published in Oklahoma Employment Law Letter | June 1, 2012

In 1963, the Oklahoma Legislature created the Oklahoma Human Rights Commission (OHRC). The legislation created an administrative framework empowering the state government to implement the mandate of “removing friction, eliminating discrimination, and promoting unity and understanding among all the people of Oklahoma.” The legislation was part of the national civil rights movement, including the 1963 march on Washington, D.C., culminating in Martin Luther King Jr.’s “I Have a Dream” speech and the debate on and passage of the Civil Rights Act of 1964 and its now familiar Title VII, banning employment discrimination.

The early years

The OHRC was charged with investigating and eliminating discrimination in employment, housing, and public accommodations. However, it had only persuasive powers under its implementing statute; it could mediate disputes and encourage private parties to eliminate racism by, for example, encouraging private employers to hire more minorities, but it had no actual enforcement powers.

In May 1968, the legislature, emulating the Civil Rights Act of 1964, passed the Oklahoma Anti-Discrimination Act (OADA), which created an enforcement mechanism for the OHRC in eradicating racism in private employment, housing, and public accommodations. Following the Equal Employment Opportunity Commission’s (EEOC) lead, instead of moral suasion, the OHRC gradually was empowered to issue subpoenas, investigate claims, hold administrative hearings, make determinations, and assess penalties. In the late 1960s and 1970s, the OHRC played a prominent role in the desegregation of private employment and the Oklahoma City public school system.

The OHRC’s function was deemed significant enough that the Oklahoma Supreme Court held that filing an administrative charge of discrimination was a mandatory precondition of filing a discrimination claim in court. In other words, the court held that the OHRC had special expertise in determining and addressing discrimination and that its administrative process had to be given a chance to work before a lawsuit alleging discrimination under Oklahoma law could be filed. Failure to exhaust the administrative process would (and still does) prevent a subsequent lawsuit.

We are all familiar with the administrative process in the employment context: A current or former employee must first file an administrative charge of discrimination and allow the agency to attempt to resolve it before he can file a lawsuit alleging employment discrimination.

Over time, however, the perception developed that the OHRC was doing little to enforce the OADA, at least with regard to private-sector employment. The level of activity was in part due to a work-sharing agreement with the local EEOC office under which claims filed at either agency were automatically deemed filed with both the OHRC and the EEOC.

The work-sharing agreement also allowed the OHRC to defer investigation of complaints to the EEOC, which it routinely did for several reasons, for the sake of efficiency and to include the EEOC’s greater resources. In other words, if the EEOC can investigate a claim as well as or better than the OHRC, then why not stand aside and let it? The net result, however, has been that the level of OHRC activity has declined significantly over the years, and its public profile has been diminished to the point of irrelevance.

Legislature responds

Because of that ? and for a mix of political, ideological, economic, and budgetary reasons ? the Oklahoma Legislature passed a little-noticed bill (Senate Bill (SB) 763) in May 2011, merging the OHRC into the Attorney General’s (AG) Office and requiring that “all duties and responsibilities of the OHRC” be assumed by the AG no later than July 1, 2012. The bill called for the creation of a new Office of Civil Rights Enforcement in the AG’s office, and the AG was to protect and defend civil rights under Oklahoma law.

The legislation was intended to effectively eliminate the OHRC as an independent state agency, effective July 1. After that date, civil rights enforcement, including receipt of charges, investigation of charges, conciliation efforts, and filing lawsuits against private- sector employers, was to be done exclusively by Oklahoma’s chief law enforcement officer, the AG. Under SB 763, Oklahoma would become one of only four states (along with Arizona, California, and Pennsylvania) to have state civil rights laws enforced exclusively through the AG’s office.

Legislature doesn’t respond

SB 763 is nothing more than a mandate, or directive, to the AG to establish a civil rights enforcement division by July 1. To actually make that happen, though, implementing legislation had to be passed, including yet another revision of the OADA because that’s where the enforcement mechanisms are defined. For example, references to the OHRC, which was being eliminated, had to be replaced with references to the AG’s office.

The legislature’s effort to carry out the mandate of SB 763 is found in SB 1728. Notably, SB 1728 was not passed this legislative session (which ended May 25), despite the AG’s concerted efforts. As is so often the case in state politics, the failure to pass the bill had less to do with its substance than timing and personal relationships. The legislature doesn’t reconvene until January 8, 2013, and SB 1728 no doubt will be revived, as the AG has expressed an intention to make it priority legislation.

Where are we now?

Presumably, the status quo remains in effect, although it is less than clear. SB 763 doesn’t actually state that the OHRC is “abolished” effective July 1. Rather, it directs the AG to be in a position to assume the commission’s duties effective that date, but that isn’t going to happen. The best understanding is that nothing will change until January 2013 at the earliest.

Nevertheless, you should expect the AG to assume the OHRC’s duties in the near term (less than one year). What practical changes that will mean remains to be seen, but the best guess is that there will be increased enforcement activities and more aggressive enforcement, including an increase in the number of actual lawsuits filed by the state against private-sector employers. That conclusion is based on statements to that effect by the AG.

It also stands to reason that if Oklahoma’s chief law enforcement office, staffed by a team of capable legal counsel, is in charge of civil rights enforcement (i.e., investigating charges of discrimination), then its efforts will become stricter and more contentious than it has been with the moribund OHRC and the EEOC’s nonattorney investigators.

Another development that bears watching ? because it will have a huge impact on the administrative process ? is whether the AG’s civil rights office will renew the work-sharing agreement between the OHRC and the EEOC once it is up and running. The AG’s stated intention is not to renew it because of a prevailing attitude in state government that anything having to do with the federal government necessarily is a bad thing.

So what’s the big deal? If there’s no work-sharing agreement between the state and federal agencies, then it means an employee must file separate claims with both agencies to preserve both Oklahoma and federal discrimination claims and that both agencies can ? and often do ? pursue independent simultaneous investigations. That could leave an employer fighting a battle on two fronts.

Although that’s a worst-case scenario, it would be possible for an employer to face a lawsuit filed against it by Oklahoma’s AG in state court alleging violations of Oklahoma law while simultaneously facing a federal lawsuit filed by the EEOC alleging violations of federal law. Although the claims would be parallel in most respects, it would be a matter of state versus federal law and state versus federal enforcement. You could call it separate but equal justice.

Once the implementing legislation is passed, it also remains to be seen how the courts will interpret issues like when an administrative charge must be filed. Federal law is deceptively complicated about filing requirements and the interplay of state and federal enforcement mechanisms. Stay tuned.