Am I Protected From Employment Discrimination?

I have practiced employment law since I first started practicing law. In the beginning I was on the side of the employer. Today I predominately represent employees. I often see people state online that an employee cannot challenge the termination of their employment in Oklahoma because we are a “right to work state.” While Oklahoma is a right to work state, that has nothing to do with the ability to challenge the termination of one’s employment.

The right to work refers to forced participation in a labor union. The right to work means that employees cannot be forced to pay union fees and dues even if their employment is covered under a union agreement. When employees are covered under a union agreement this usually means that they have more protections than an ordinary worker who has “at will employment.”

Most people who reference “right to work” really mean “at will employment.” The majority of employment in Oklahoma and across the US is at will employment. In this arrangement it means an employer can fire you for any reason, as long as its not an illegal reason. The typical illegal reasons we hear about are discriminatory reasons such as those protected under Federal Law in Title VII of the Civil Rights Act of 1964 (Title VII applies to race, religion, national origin, color, sex), the Age Discrimination in Employment Act (ADEA), the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), and/or the Genetic Information Non-Discrimination Act (GINA). Protections under state law are found in the Oklahoma Anti-Discrimination Act (OADA). The OADA is primarily used against small employers and state and local governmental employers because of restrictions in federal law. There are other laws which can also form the basis of illegal discrimination claims, but these are the most common ones applied.

To pursue a claim for a violation of these laws an employee must file a charge of discrimination with either the Equal Employment Opportunity Commission (EEOC) or the Office of the Attorney General Civil Rights Enforcement (OCRE). Because Oklahoma has both agencies, claims under federal law may be filed up to 300 days after the last day of discriminatory treatment. However, any claim asserted under the OADA must be filed within 180 days of the last day of discriminatory treatment.

To implicate the federal regulations the employer must satisfy the definition of “employer” under each of these acts. Generally, the employer must have at least 15 employees to be an employer under federal law. To be covered by the ADE the employer must have at least 20 employees. States have also enacted their own versions of these laws in order to prevent small employers from discriminating against the employees under these same circumstances. The recoverable damages under the OADA are not as robust as the protections under the federal laws. However, the OADA also provides important protections when an employee is discriminated against by state and local governmental employers because Congress did not preempt the field by making clear that government sovereignty did not protect them from being liable under the law. As a result, the ADA and ADEA only apply in limited circumstances against the government and in Oklahoma, injured employees have to fall back on the protections in the OADA. There are limited protections for state and local governmental employees under the Family and Medical Leave Act (FMLA) also. As a result of these various hoops that an employee must jump through, not all Plaintiffs lawyers will handle employment cases against the government.

Once a charge of discrimination is filed with the appropriate agency, they have up to 180 days to investigate the allegation. Often the agency will ask the employer to respond to the employee’s allegations with a position statement. The employee will also have a chance to provide their version of the events and provide evidence. After that the EEOC may either decide to undertake representation of the complaining employee, recommend the matter for mediation, or immediately issue the right to sue which is necessary to move into a lawsuit. After 180 days have passed, the employee may proceed with filing suit even if the right to sue has not been issued. In nearly 20 years of working with employment cases, I have never had the EEOC agree to undertake representation. Overall, they only accept something like 1% of all claims filed. The majority of the cases I have worked with have been recommended to mediation but mediation is not required and either party can refuse to participate in it. Eventually a right to sue will be issued and the employee can proceed with filing suit within 90 days. If a lawsuit is not initiated within the 90 days the employee is barred from pursuing those claims.

In each of these laws the employee must show that they are a member of the protected class that the law seeks to cover, that they suffered an adverse employment action, and that they suffered damages as a result of the adverse employment action based on their membership in the protected class. The test and burdens are slightly different under each particular law but those are the basic elements. If an employee prevails on the federal claims at trial and recovers at least $1 then the employee has the right to attorney’s fees. This is necessary because most people cannot afford to be unemployed for long lengths of time and most lost wages are a low amount. The award of attorney’s fees was made to help encourage lawyers to take these cases to stomp out discrimination in employment.

The employee’s membership in the particular protected class as outlined by the law is a requirement to assert discrimination. Additionally, you must show that the membership is the cause of the termination. If an employer fires you because they don’t like your personality or because your boss is just a jerk who doesn’t like you, it may be discrimination, but it is not illegal discrimination. Many employees struggle to understand the difference between legal and illegal discrimination. However, if you are the victim of illegal discrimination, then the at will employment laws do not allow the employer to take adverse action against you without being punished. If you believe you have been discriminated against, you should seek the advice of an experienced attorney to advise you on these matters as employment law can be very complicated. For more information about employee protections from discrimination in employment go to EEOC.GOV.

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Rachel Bussett is an attorney with 19 years of experience. She is motivated and inspired to fight for kids and all Oklahomans. 

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