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Oklahoma Supreme Court decision could affect awarded damages

Q&A with Nathan Whatley

published in The Oklahoman | January 23, 2009

McAfee & Taft employment law attorney Nathan Whatley was featured in The Oklahoman discussing a recent Oklahoma Supreme Court decision that “could have serious consequences for employers faced with discrimination lawsuits based on a person’s protected status — like age, gender, race and religion.”

McAfee & Taft employment attorneys sent out an employment law alert last month about the case, Kruchowski, et al. vs. The Weyerhauser Company. A group of employees represented by Oklahoma City attorneys Mark Hammons and Jim Priest brought suit against Weyerhaeuser, asserting that their terminations were the result of age discrimination in violation of the federal Age Discrimination in Employment Act (ADEA).  In addition to the ADEA claim, the plaintiffs asserted a tort claim contending their terminations were in violation of Oklahoma’s public policy.  Such claims are typically referred to as “Burk torts” after a 1989 case which allowed plaintiffs to sue their employers if they believed their terminations violated the state’s public policy. Oklahoma law has recognized that alleged acts of discrimination in violation of Oklahoma’s discrimination laws provide a basis for one of these so-called Burk tort claims.

Whatley told The Oklahoman that the decision could have a significant impact on Oklahoma employers.

“The Kruchowski decision increases the financial exposure for employers facing discrimination claims because of the potential for virtually unlimited punitive damages,” Whatley said. “The caps on punitive damages provided in the federal discrimination laws likely have no application in Burk tort claims. Since Kruchowski involved only claims of age discrimination, it is not yet clear whether the courts will apply Kruchowski to claims for race, national origin, gender or religious discrimination. However, plaintiff’s attorneys have already filed a number of motions to add Burk tort claims in cases involving federal claims for race and gender discrimination. It is certain that they will continue to aggressively seek to expand the availability of Burk torts.”

Whatley recommended that employers should revisit their anti-discrimination policies and ensure they are following best human resources practices.

“Employers should also give serious thought to implementing a mandatory arbitration program to resolve employment-related disputes,” he said. “Although an enforceable program could not impose an actual limit on the amount of potential punitive damages, an arbitration program could be a means of avoiding the risk of an emotion-based verdict at the hands of a jury and an accompanying emotion-based award of punitive damages.”