OAR 839-005-0030
Sexual Harassment in Employment

(1)

Sexual harassment is unlawful discrimination on the basis of sex and includes the following types of conduct:

(a)

Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature when such conduct is directed toward an individual because of that individual’s sex and:

(A)

Submission to such conduct is made either explicitly or implicitly a term or condition of employment; or

(B)

Submission to or rejection of such conduct is used as the basis for employment decisions affecting that individual.

(b)

Any unwelcome verbal or physical conduct that is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with work performance or creating a hostile, intimidating or offensive working environment.

(2)

The standard for determining whether harassment based on an individual’s sex is sufficiently severe or pervasive to create a hostile, intimidating or offensive working environment is whether a reasonable person in the circumstances of the complaining individual would so perceive it.

(3)

Employer proxy: An employer is liable for harassment when the harasser’s rank is sufficiently high that the harasser is the employer’s proxy, for example, the respondent’s president, owner, partner or corporate officer.

(4)

Harassment by Supervisor plus Tangible Employment Action: An employer is liable for sexual harassment by a supervisor with immediate or successively higher authority over an individual when the harassment results in a tangible employment action that the supervisor takes or causes to be taken against that individual. A tangible employment action includes but is not limited to the following:

(a)

Terminating employment, including constructive discharge;

(b)

Failing to hire;

(c)

Failing to promote; or

(d)

Changing a term or condition of employment, such as work assignment, work schedule, compensation or benefits or making a decision that causes a significant change in an employment benefit.

(5)

Harassment by Supervisor, No Tangible Employment Action: When sexual harassment by a supervisor with immediate or successively higher authority over an individual is found to have occurred, but no tangible employment action was taken, the employer is liable if:

(a)

The employer knew of the harassment, unless the employer took immediate and appropriate corrective action.

(b)

The employer should have known of the harassment. The division will find that the employer should have known of the harassment unless the employer can demonstrate:

(A)

That the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and

(B)

That the aggrieved person unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

(6)

Harassment by Co-Workers or Agents: An employer is liable for sexual harassment by the employer’s employees or agents who do not have immediate or successively higher authority over the aggrieved person when the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action.

(7)

Harassment by Non-Employees: An employer is liable for sexual harassment by non-employees in the workplace when the employer or the employer’s agents knew or should have known of the conduct unless the employer took immediate and appropriate corrective action. In reviewing such cases the division will consider the extent of the employer’s control and any legal responsibility the employer may have with respect to the conduct of such non-employees.

(8)

Withdrawn Consent: An employer is liable for sexual harassment of an individual by the employer’s supervisory or non-supervisory employees, agents or non-employees, even if the acts complained of were of a kind previously consented to by the aggrieved person, if the employer knew or should have known that the aggrieved person had withdrawn consent to the offensive conduct.

(9)

When employment opportunities or benefits are granted because of an individual’s submission to an employer’s sexual advances, requests for sexual favors, or other sexual harassment, the employer is liable for unlawful sex discrimination against other individuals who were qualified for but denied that opportunity or benefit.

Source: Rule 839-005-0030 — Sexual Harassment in Employment, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=839-005-0030.

839–005–0000
Purpose and Scope of these Rules 839–005–0003
Definitions: Enforcement of Laws Prohibiting Unlawful Practices 839–005–0005
Unlawful Discrimination Defined 839–005–0010
Discrimination Theories: Employment 839–005–0011
Constructive Discharge from Employment 839–005–0013
Bona Fide Occupational Qualification (BFOQ) and Affirmative Action Plan Exceptions in Employment 839–005–0014
Successors in Interest for Employment Discrimination 839–005–0021
Employment Discrimination Based on Sex or Sexual Orientation 839–005–0026
Employment Protections and Rights Relating to Pregnancy 839–005–0030
Sexual Harassment in Employment 839–005–0031
Exceptions to Discrimination in Employment and Housing Based on Sexual Orientation or Religion 839–005–0036
Commissioner’s Complaint for Discrimination Based on Employment Status 839–005–0060
Employer Obtainment or Use of Credit History Information: Purpose and Scope of these Rules 839–005–0065
Employer Obtainment or Use of Credit History Information: Definitions 839–005–0070
Employer Obtainment or Use of Credit History Information: Unlawful Discrimination 839–005–0075
Employer Obtainment or Use of Credit History Information: Exceptions 839–005–0080
Employer Obtainment or Use of Credit History Information: Determining whether Credit History Is Substantially Job-Related 839–005–0085
Employer Obtainment or Use of Credit History Information: Enforcement and Retaliation 839–005–0125
Discrimination Based on Protected Activity: Retaliation for Opposing Unlawful Practices 839–005–0130
Discrimination Based on Protected Activity: Employees Serving or Scheduled to Serve as Jurors 839–005–0135
Discrimination Based on Protected Activity: Insurance Coverage for Employees Serving as Jurors 839–005–0138
Discrimination Based on Protected Activity: Child Support Obligations 839–005–0140
Accommodation of Employee Religious Practices 839–005–0160
Protections for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Unlawful Employment Practices 839–005–0170
Protections for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Reasonable Safety Accommodation 839–005–0195
Housing Discrimination: Purpose and Scope 839–005–0200
Housing Discrimination: Definitions 839–005–0205
Housing Discrimination: Prohibited Discrimination in Real Property Transactions 839–005–0206
Discrimination Theories: Housing 839–005–0210
Housing Discrimination: Exceptions 839–005–0215
Housing Discrimination: Religious Exemption 839–005–0220
Housing Discrimination: Discrimination in Real Property Transactions Against Individuals Based on Disabilities 839–005–0300
Discrimination by Career Schools: Purpose and Scope 839–005–0305
Discrimination by Career Schools: Definitions 839–005–0310
Discrimination by Career Schools: Unlawful Discrimination 839–005–0315
Discrimination Theories: Career Schools 839–005–0320
Discrimination by Career Schools: Authority of Superintendent of Public Instruction Related to Complaints under ORS 345.240 839–005–0325
Discrimination by Career Schools: Retaliation or Discrimination 839–005–0400
Employer Access to Employee or Applicant Social Media Accounts: Unlawful Employment Practice
Last Updated

Jun. 8, 2021

Rule 839-005-0030’s source at or​.us