Sexual harassment law finds its way into Indian country Oklahoma | Crowe & Dunlevy

Since the passage of the Civil Rights Act of 1964 (Title VII), signed into law by President Lyndon Johnson, Title VII has become a staple in private workplaces across the country. Amended over the years, Title VII has become synonymous with protection from sexual harassment in the workplace following allegations by Professor Anita Hill against then-Supreme Court nominee Clarence Thomas in 1994. During the last quarter century, Title VII continues to be the primary mechanism. whereby sexual harassment and gender discrimination are identified and addressed administratively through the Equal Employment Opportunity Commission and its state counterparts, and through private civil litigation brought in federal courts in all fifty states.

While Title VII remains ubiquitous in discussions of sexual harassment in the private workplace, historically speaking, the same cannot be said for employers in Indian Country. This is primarily because tribes were not included in the definition of “employer” in the original text of Title VII or any of its amendments. Nevertheless, the Seventh Osage Nation Congress recently took matters into its own hands by enacting legislation to provide Osage Nation employees with protection from sexual harassment, gender discrimination, and retaliation. Specifically, the law makes it illegal under Osage law to hire, fire, or discriminate against anyone because of their gender.

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

The language of Osage Nation law is in many ways modeled on the seminal language of Title VII, but it retains some unique features, and its interpretation will certainly be shaped by future cases heard in 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 prohibit sexual harassment not only in as a policy or procedure, but as the law of the respective sovereign. nation. If this happens, employers located on tribal lands will need to act quickly to implement policies that comply with the new laws, provide training to members of management on identifying and addressing sexual harassment, and provide notice. and education to employees on these new rights. . It is always recommended to involve an employment lawyer in the creation and review of these policies. We will continue to monitor developments in this area and look forward to partnering with tribal employers to prepare for evolving sexual harassment and gender discrimination laws in tribal workplaces.

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