Am I a victim of employment discrimination? – Part 1

I get a lot of calls from people who have lost their job inquiring as to whether something is discrimination or if they were wrongfully fired.  My answer is often you may very well have been discriminated against but not all discrimination is illegal.  Oklahoma is what is known as an “at will employment” state. This means that assuming you do not have an employment contract or some kind of collective bargaining agreement associated with a union, an employee can leave a job at any time for any reason. Likewise your employer may fire you at any time for any reason, as long as it’s not an illegal reason. So what’s a legal reason versus an illegal reason. If you’re a woman and your boss is a woman and she doesn’t like you and maybe even she’s jealous because you’re prettier than she is or nicer than she is, that’s a perfectly legal reason.  However if your boss doesn’t like you based on a protected class, that’s an illegal reason.

The law is an every changing animal which grows as with the changes in our society both good and bad.  The currently recognized protected classes under the Oklahoma Anti Discrimination Act and the Federal law equivalents include race, color, sex, gender, sex, physical or mental disability, national origin, ancestry, religion, creed, age, veteran status, genetics, or citizenship. It is also to retaliate against an employee who takes action to protect another rights or to assert their legal rights.  Sexual orientation is not currently a protected class, however some courts are addressing discrimination based on orientation based on gender and compliance with “societal gender norms” which targets discrimination based on a man or woman’s failure to adhere to certain behaviors society normatively attributes to those groups examples would be a man with feminine mannerisms or a woman with more masculine mannerisms.

So what should you do if you believe you have been discriminated against in your employment? First  familiarize yourself with your employers anti discrimination policies. Does the conduct violate the policy? Second if you feel action has been taken against you speak up and tell someone in charge.  Most employers have a procedure in place to report discrimination. Third, and most importantly document The Who, what, when, where, why and how regarding the discrimination. When you live with a situation you know the ins and outs of it but your employer will not. Having a journal or list of incidents with dates, times, places, people involved etc helps you remember, gives the employer specifics to investigate and helps protect your rights.  When you report to an employer do not just tell someone either. Document your report. If you see your HR Rep in the hallway and tell him or her about the situation, follow up with an email or memo and keep a copy for yourself. If the employer fails to take action, this documentation is key in the last step. Lastly, if the employer fails to address the situation or you are fired, take your documentation and information to the appropriate agency and file your claim.  In Oklahoma an employee who has been discriminated against has 300 days from the last day of discrimination to file a charge with the Equal Employment Opportunity Commission (“EEOC”) or Oklahoma Attorney General’s Office (“AG”) to assert claims under Federal law and 180 days after the last date of discrimination to file a claim under Oklahoma’s anti discrimination law with either the EEOC or the AG. After you file a charge, the EEOC or AG’s Office can  either investigate your claim for up to 180 before issuing a right to sue letter or may immediately issue a right to sue letter. Once the notice of right to sue is issued, you have 90 days to file a lawsuit or the claim is gone forever. There are lots of ins and outs of this process that an experienced attorney can explain. An employee has a right  to contact an attorney at any time in this process and the attorney can guide you about what does and does not rise to the level of discrimination.


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