SECTION 335:15-1-6. Allegations of discrimination in employee disciplinary actions; burden of proof

(a)   Disciplinary actions are actions taken by the employer as a punishment against an employee for violating some company rule, practice or policy. The most common disciplinary actions are reprimands, warnings, suspensions, demotions and dismissals. Most discharge or discipline complaints can be analyzed under the disparate theory of discrimination.

(b)   In a discharge or discipline complaint as with any complaint arising under Title 25 of the Oklahoma Statutes, the Complainant must establish a prima facie case of discrimination. ["McDonnell Douglass Corp. v. Green", 411 U.S. 792, 5 EPD para 8607 (1973); "Furnco Construction Corp. v. Waters", 438 U.S. 567, 17 EPD para 8401 (1978); "Board of Trustees of Keene State College v. Sweeney", 439 U.S. 24, 18 EPD para 8673 (1978); "Texas Department of Community Affairs v. Burdine", 101 S. Ct. 1089, 25 EPD para 31,544 (1981)]. This means that (s)he must submit evidence which is sufficient to establish that his/her allegations are true if Respondent does not submit evidence to the contrary. The Respondent must then be given the opportunity to rebut Complainant's prima facie case. This can be done in a number of ways, which are discussed below. Complainant is then given the opportunity to provide evidence that Respondent's explanations for its actions are pretextual i.e., an attempt to conceal discrimination. The Commission will also examine Respondent's statement and other evidence for pretextuality. When all of the evidence has been obtained and analyzed, the Commission will determine whether it is more reasonable than not to believe that Complainant's allegations are true. The Commission determines that it is sufficient to find discrimination in a discharge case if the race, sex or other prescribed category played any causal part in the discharge of the employee. It is not necessary that race, etc., be the sole cause of the discharge. It is sufficient if the prohibited grounds was one of the considerations which led to the discharge. …where it can be shown that discrimination on the basis of race, color, religion, sex or national origin was, in part, a causal factor in a discharge or refusal to hire, the aggrieved party is statutorily entitled to damages of lost compensation. ["King v. Laborers Local 818", 443 F.2d 273 (6th Cir. 1971)].

(1)   In determining the credibility of witnesses where there is a dispute as to fact in connection with a discharge case, it is proper to consider whether other related aspects of the employer's business operate in an apparently discriminatory manner. In making this judgment, it is appropriate for the Commission to consider statistics of minority/female employment compared with the available labor force in the population.

(2)   As indicated previously, the basis of the disparate treatment theory is differences in the treatment of similarly situated individuals. The concept of "similarly situated" is not one which can be precisely defined, but instead must be fitted to the particular facts of each case. In general, it means that the persons who are being compared are so situated that it is reasonable to expect that they would receive the same treatment in the context of a particular employment decision.

(A)   For example, an employer's collective bargaining agreement may contain a rule that any employee-charged with theft of company property is automatically discharged. If a Black employee who is charged with theft of company property is discharged, the discharge is consistent with the rule and the agreement. However, the analysis does not end there. To determine whether there was disparate treatment, the Commission will ascertain whether white employees who have been charged with the same offense are also discharged. If they merely suspended, disparate treatment has occurred. The key to the analysis is that they are similarly situated employees, yet the employer failed to apply the same criteria for discharge to all of them. They are similarly situated because they are Respondent's employees and were charged with the same misconduct. The difference in discipline could be attributable to race, unless Respondent produces evidence to the contrary.

(B)   The case of "Mabin v. Lear Siegler, Inc.", 457 F.2d (CA6, 1972) aff'd (6th Cir. 1972) illustrates the interpretive process which the Commission will follow. Judge Fox in the district court adopted the following analysis:

(i)   Title VII of the Civil Rights Act of 1964 is to be accorded a liberal construction in order to carry out the purpose of Congress to eliminate the inconvenience, unfairness and humiliation of racial discrimination. ["Hamm v. City of Rock Hill", 379 U.S. 306, 85 S. Ct. 384, 13 L. ED. Christian Association of Raleigh, N.C., 397 F. (2nd Cir. 1968; "Miller v. Amusement Enterprises, Inc.", 394 F. 2nd 342 (5th Cir. 1968); "Quarles v. Phillip Morris, Inc.", 279 F. Supp. 505, 67 LRRM 2098 (E.D. Va. 1968).].

(ii)   The defendant is presumed to intend the probable consequences of its conduct. ["Radio Officers'Union, et al, v. N.L.R.B.", 347 U.S. 17 74 S. Ct. 323, 98 L. ED. 455, 43 LRRM 2417 (1954)]. In other words, Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. ["Griggs v. Duke Power Company", 401 U.S. 424 (1971)].

(iii)   In cases concerning racial discrimination statistics often tell much and courts listen. ["State of Alabama v. United States", 304 F.2d 583, 586 (5th Cir. 1962) aff'd per curiam, 371 U.S. 37, 83 S.Ct. 145, 9 L. Ed. 2nd (1962); "Parham v. Southwestern Bell Telephone Company", 433 F.2d 421, (8th Cir. 1970)].