SECTION 335:15-1-3. Discrimination defined

(a)   Adverse impact.

(1)   The Commission hereby adopts the definition of discrimination set forth by Chief Justice Warren Burger of the United States Supreme Court in "Griggs v. Duke Power Company", (3 EPD para 8137) 401 U.S. 424 (1971), a case arising under Title VII of the Civil Rights Act of 1964. In that case, the Supreme Court defined discrimination in employment as follows:

(A)   The object of Congress in the enactment of Title VII of the Civil Rights Act of 1964 is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Civil Rights Act of 1964, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices. ["Griggs v. Duke Power Co." 401 U.S. 424 (1971), 3 EPD para 1837].

(B)   Congress did not intend by Title VII, Civil Rights Act of 1964, however, to guarantee a job to every person regardless of qualifications. In short, the Civil Rights Act of 1964 does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress had proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. ["Griggs v. Duke Power Co." supra.].

(C)   Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job-seeker be taken into account. It has–to resort again to the fable–provided that the vessel in which the mile is proffered be one all seekers can use. The Civil Rights Act of 1964 proscribes not only over discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. ["Griggs v. Duke Power Co." supra.].

(D)   Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability. ["Griggs v. Duke Power Co." supra.].

(E)   The Company's lack of discriminatory intent is suggested by the special efforts to help the under educated employees through company financing of two- thirds the cost of tuition for high school training. But Congress directed the thrust of the Civil Rights Act of 1964 to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer burden of showing that any given requirements must have a manifest relationship to the employment in question. ["Griggs v. Duke Power Co." supra.].

(F)   The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the common-sense proposition that they are not to become masters of reality. ["Griggs v. Duke Power Co." supra.].

(2)   The definition of employment discrimination as defined in this subsection establishes the proper perspective for an understanding of the problem of employment discrimination.

(b)   Disparate treatment. Besides the fact that some neutral tests illegally operate to bring about discriminatory job consequences, another major area of discrimination concerns disparate treatment. Disparate treatment occurs when an employer or other person subject to the Act intentionally excludes individuals from an employment opportunity bases on race, color, sex, religion, national origin, handicap, or age. Evidence of exclusion, however, need not be embodied in Respondent's employment policies or practices. Whenever similarly situated individuals of a different race, color, sex, national origin, handicap or age are accorded disparate treatment in the context of a similar employment situation, it is reasonable to infer, absent other evidence, that discrimination has occurred. The presence of a discriminatory motive can be inferred from the fact that there were differences in treatment.

["International Brotherhood of Teamsters v. U.S." 431 U.S. 324, EPD para 7579 (1977)].

(c)   Accommodation. A third major area of discrimination involves certain employer requirements. Title 25 of the Oklahoma Statutes establishes that the failure to accommodate an employee's or prospective employee's religious practices, and the failure to accommodate a handicapped employee or prospective employee may be discriminatory. Title 25 of the Oklahoma Statutes requires employers and other persons subject to the Act to accommodate the religious practices of its employees and prospective employees unless to do so would create an undue hardship on the conduct of the employer's business. Further, employers subject to Title 25 of the Oklahoma Statutes, are required to make reasonable accommodation for handicapped individuals unless to do so would create an undue hardship. This requirement is not identical to the reasonable accommodation requirement concerning religion in Title 25 of the Oklahoma Statutes. Discrimination against handicapped individuals is discussed further in the following sections of this Chapter.