Sexual Harassment Law Finds its Way into Oklahoma Indian Country

Since the passage of the Civil Rights Act of 1964 (Title VII), signed into law by President Lyndon Johnson, Title VII has become a fixture in private workplaces across the nation. Amended over the years, Title VII became synonymous with workplace protection against sexual harassment in the wake of Professor Anita Hill’s allegations against then Supreme Court nominee Clarence Thomas in 1994. For the last quarter of a century and counting Title VII continues to be the primary mechanism by which sexual harassment and gender discrimination is identified and dealt with administratively through the Equal Employment Opportunity Commission and its state law counterpart agencies, and through private civil litigation brought in federal courts in all fifty states.

While Title VII remains ubiquitous in discussions about sexual harassment in the private workplace, historically speaking the same cannot be said for employers in Indian Country. That is primarily because tribes were not included in the definition of “employer” in the original text of Title VII or any of its amendments. Nonetheless, the Seventh Osage Nation Congress has recently taken matters into its own hands by enacting legislation intended to provide Osage Nation employees protection against sexual harassment, gender discrimination, and retaliatory discharge.  Specifically, the law makes it illegal under Osage Law to hire, fire, or discriminate against any individual based on sex.

The law also forbids sexual harassment in the workplace which can consist of  “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The law provides a limited waiver of the Osage Nation’s sovereign immunity that is limited to the Osage Nation courts and no other jurisdiction, but it does not specifically spell out the potential remedies for individuals who prove they experienced sexual harassment and/or gender discrimination as defined by the law.

The language of the Osage Nation law is in many ways patterned after the seminal language in Title VII, but it retains some unique characteristics, and its interpretation will certainly be shaped by future cases heard in the Osage Nation courts. The law is one of the first of its kind in Oklahoma Indian Country and its passage could perhaps open the floodgates for similar legislative efforts by other Oklahoma tribes to forbid sexual harassment not just as a policy or procedure, but as a law of the respective sovereign nation. If that happens, the employers located on tribal lands will need to move quickly to implement policies that adhere to the new laws, provide training to members of management about identifying and addressing sexual harassment, and provide proper notice and education to employees about these new rights. It is always a best practice to involve employment law counsel in the creation and review of such policies. We will continue to monitor developments in this area and look forward to partnering with tribal employers to prepare for the evolution of sexual harassment and gender discrimination laws in tribal workplaces.

For more information regarding the recently enacted legislation, contact Labor & Employment Practice Group Chair Adam W. Childers or Indian Law & Gaming Practice Group Chair Mike McBride III.

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