with whom HARGRAVE and WINCHESTER, JJ., join, dissenting in part
{1 This dissent is solely from today's overruling of Brown v. Ford1 insofar as that case requires that in actionable state-law employment discrimination claims (both common-law and statutorily-based) the defendant's minimum number of employees must be no less than fifteen. The court overlooks that the minimum-number-of-employees requirement does not apply to the case at hand because this discrimination claim is bottomed not on state law but on federal constitutional law. Vindication of right to freedom from racial discrimination cannot be made dependent on the number of employees. I recede from the court's mistaken view because (1) the wide sweep of today's overruling needlessly covers all claims against employers instead of only those that stand upon federal constitutional underpinnings and (2) sans any legal warrant, today's reach of overruling operates to repeal a solemn legislative act when its application is confined to claims based solely on Oklahoma common and statutory law.
I
THE COURT GRATUITOUSLY AND NEEDLESSLY OVERRULES BROWN ON A POINT THAT DOES NOT EVEN APPLY TO THE CASE AT HAND
12 At-will employees who bring a lawsuit for wrongful discharge based on the state statutory or common law must show that the defendant-employer falls within the purview of the invoked liability by having the requisite number of employees.2 When like claims rely primarily on federal law, constitutional or statutory, the employee-claimant stands relieved of the minimum-employee requirement. This is so because that provision of state statutory law may not be extended to suits based on federal law.3 The state's minimum-employee requirement of actionability, if extended to claims predicated on federal constitutional protection, would unduly, and sans any legal warrant, restrict the operation of a federal fundamental-law shield in a manner contrary to the U.S. Constitution.
13 Tate v. Browning-Ferris, Inc.4 provided a federal constitutional law basis for a racially motivated wrongful termination claim. Constitutional claims of that variety *691must stand free of state-law ballast. We hence cannot burden this claim's federal-law predicate by a state-imposed statutory minimum-employee requirement.5
4 The case at hand is unmistakenly like that in Tate.6 The man who claims discrimination is an African American. Tate teaches that the 14th Amendment, when offended against, will stand as a predicate for a state claim based on a racially motivated wrongful or retaliatory discharge.7 In this context the 14th Amendment must be regarded as also a part of Oklahoma's own law.8 The breach of public policy for which Tate allowed a Burk action rests on state statutory law 9 applied in conjunction with federal constitutional law.10 We found from these two sources a command for equal on-the-job treatment for persons of African descent.
1 5 In Brown v. Ford the employee's state-law sexual harassment claim did not fall within the state statutory criteria of actiona-bility since plaintiff's workplace had less than fifteen employees. She was hence unshielded by any legislatively articulated public-policy protection. Because the main predicate for the lawsuit at hand is drawn from the l4th Amendment,11 it is impermissible to conclude that Brown would apply and should hence be swept aside by today's utterly unwarranted across-the-board judicial annihilation of the statute's minimum-employee requirement.
T6 Claims for employment discrimination based on common and statutory law rather than on federal protections must conform to the requirements of Oklahoma's anti-discrimination act. That act applies solely to employers with more than fifteen employees. On the other hand, those discrimination claims that are rested, in whole or in part, upon a federal constitutional foundation need not be subjected to the requirements of Oklahoma's minimum-employee limit. In short, Brown v. Ford need not be overruled in any of its parts by today's pronouncement. This is so because in the case at hand the primary legal predicate for the claim is the 14th Amendment's protection of racial equality. Today's gratuitous and needless overruling of Brown releases, sans any legal warrant, from compliance with statutory state law a category of claims which stands governed entirely by state law, written or unwritten.
T7 I would hold this claim to be exempt from compliance with the minimum-number-of-employee requirement and would not overrule Brown v. Ford because that pronouncement is not even applicable to today's quest for relief from racial discrimination.
. 1995 OK 101, 905 P.2d 223. In Brown v. Ford the court held that only those employers who have fifteen or more employees are subject to Oklahoma's anti-discrimination act, 25 0.S.2001 § 1101 et seq., which makes actionable certain offending sexual conduct in the workplace. Brown's employer was not subject to liability under the act because it had fewer than fifteen employees.
. The legislative exclusion of employers engaging less than fifteen persons from liability under the administrative remedy created by 25 0.S.2001 § 1101 et seq. makes that statutory regime unavailable against small shops' employees. 25 ©.$.2001 § 1301(1).
. Tatev. Browning-Ferris, Inc., 1992 OK 72, ¶ 19, 833 P.2d 1218. For an in-depth explanation of the distinction between federal-law and statuio-ry-law claims see Clinton v. State ex rel. Logan County Election Bd., 2001 OK 52, ¶ 6, 29 P.3d 543, 548 (Opala, J., concurring in the result but not in the text of the court's pronouncement).
. Supra note 3. "The breach of public policy for which Tate allowed a Burk action was rested on a violation of: (1) the Oklahoma Anti-Discrimination Act (AODA) and of (2) the extant U.S. Supreme Court's XIVth Amendment jurisprudence. The latter legal source, part of this Nation's fundamental law since 1868, has served as a basis for articulated national public policy for all the States." Clinton v. State ex rel. Logan County Election Bd., supra note 3, at ¶ 6, 29 P.3d at 548 (Opala, J., concurring in the result but not in the text of the court's pronouncement-emphasis added, footnotes omitted).
. Clinton v. State ex rel. Logan County Election Bd., supra note 3, at 16, 29 P.3d at 548 (Opala, J., concurring in the result but not in the text of the court's pronouncement)
. In Tate, supra note 3, a discharged African-American employee sued a former employer for employment-related discrimination and retaliatory discharge.
. In Tate, supra note 3, the court held that where an employer discharges an employee in violation of a public policy that is clearly articulated in constitutional, statutory, or decisional law, the employer may be held liable for a tortious breach of a contractual obligation. 833 P.2d at 1225.
. See infra note 11.
. Oklahoma's anti-discrimination act, 25 O.S. 2001 § 1101 et seq.
. A Burk claim must be anchored in some statutory or constitutional expression of Oklahoma's own public policy. Tafe teaches that an "employee who brings a common-law tort action for damages occasioned by either a racially motivated discharge or by one in retaliation for bringing a racial discrimination complaint states a state-law claim for tortious employment termination under Burk." Tate, supra note 3, 833 P.2d at 1231; Clinton v. State ex rel. Logan County Election Bd., supra note 3, at ¶ 6, 29 P.3d at 548 (Opala, J., concurring in the result but not in the text of the court's pronouncement).
. The Equal Protection Clause of the 14th Amend., § 1, U.S. Const., commands that no State shall deny due process of the law or "deny to any person within its jurisdiction the equal protection of the laws." Oklahoma's due process clause, Art. 2, § 7, Okl. Const., has a definitional sweep that is coextensive with its federal counterpart. Black v. Ball Janitorial Serv., Inc., 1986 OK 75, 730 P.2d 510, 513.