Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions

ORS 659A.030
Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited


(1)

It is an unlawful employment practice:

(a)

For an employer, because of an individual’s race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual orientation, national origin, marital status or age of any other person with whom the individual associates, or because of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) and 419A.262 (Expunction proceeding), to refuse to hire or employ the individual or to bar or discharge the individual from employment. However, discrimination is not an unlawful employment practice if the discrimination results from a bona fide occupational qualification reasonably necessary to the normal operation of the employer’s business.

(b)

For an employer, because of an individual’s race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual orientation, national origin, marital status or age of any other person with whom the individual associates, or because of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) and 419A.262 (Expunction proceeding), to discriminate against the individual in compensation or in terms, conditions or privileges of employment.

(c)

For a labor organization, because of an individual’s race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) and 419A.262 (Expunction proceeding), to exclude or to expel from its membership the individual or to discriminate in any way against the individual or any other person.

(d)

For any employer or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment that expresses directly or indirectly any limitation, specification or discrimination as to an individual’s race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or on the basis of an expunged juvenile record, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupational qualification. Identification of prospective employees according to race, color, religion, sex, sexual orientation, national origin, marital status or age does not violate this section unless the Commissioner of the Bureau of Labor and Industries, after a hearing conducted pursuant to ORS 659A.805 (Rules for carrying out ORS chapter 659A), determines that the designation expresses an intent to limit, specify or discriminate on the basis of race, color, religion, sex, sexual orientation, national origin, marital status or age.

(e)

For an employment agency, because of an individual’s race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual orientation, national origin, marital status or age of any other person with whom the individual associates, or because of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) and 419A.262 (Expunction proceeding), to classify or refer for employment, or to fail or refuse to refer for employment, or otherwise to discriminate against the individual. However, it is not an unlawful employment practice for an employment agency to classify or refer for employment an individual when the classification or referral results from a bona fide occupational qualification reasonably necessary to the normal operation of the employer’s business.

(f)

For any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so.

(g)

For any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.

(2)

The provisions of this section apply to an apprentice under ORS 660.002 (Declaration of policy) to 660.210 (Tort liability of committees, officers, employees and agents), but the selection of an apprentice on the basis of the ability to complete the required apprenticeship training before attaining the age of 70 years is not an unlawful employment practice. The commissioner shall administer this section with respect to apprentices under ORS 660.002 (Declaration of policy) to 660.210 (Tort liability of committees, officers, employees and agents) equally with regard to all employees and labor organizations.

(3)

The compulsory retirement of employees required by law at any age is not an unlawful employment practice if lawful under federal law.

(4)

(a) It is not an unlawful employment practice for an employer or labor organization to provide or make financial provision for child care services of a custodial or other nature to its employees or members who are responsible for a minor child.

(b)

As used in this subsection, “responsible for a minor child” means having custody or legal guardianship of a minor child or acting in loco parentis to the child.

(5)

This section does not prohibit an employer from enforcing an otherwise valid dress code or policy, as long as the employer provides, on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual. [Formerly 659.030; 2007 c.100 §4]
§§ 659A.250 to 659A.262

(formerly 659.280 to 659.290)

Law Review Citations

26 WLR 394-395 (1990)

§§ 659A.150 to 659A.186

Notes of Decisions

Termination of employment in retaliation for invoking Oregon Family Leave Act rights constitutes wrongful discharge in violation of public policy. Yeager v. Providence Health System Oregon, 195 Or App 134, 96 P3d 862 (2004), Sup Ct review denied

(formerly 659.030)

Notes of Decisions

There is no ambiguity requiring the commissioner to issue a rule defining the terms of statute in order for him to issue Cease and Desist Order based upon it. Sterling v. Klamath Forest Protective Assn., 19 Or App 383, 528 P2d 574 (1974)

The exception of "bona fide occupational requirement reasonably necessary to normal operation of employer's business" must not be unduly limited but must be construed fairly by giving it usual, normal and evenhanded application. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

In proving a "bona fide occupational requirement," employer's burden of proof is by preponderance or outweighing of evidence. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

Under evidence that college informed art instructor applicant that if she persisted in discrimination complaint, she would not be considered for future openings and that college failed to consider her for later opening for which she was qualified, it was permissible inference that this constituted prohibited retaliatory action. Lewis and Clark College v. Bureau of Labor, 43 Or App 245, 602 P2d 1161 (1979), Sup Ct review denied

Under former version of this section, evidence supported Labor Commissioner's finding that maximum hiring age of 36 was not bona fide requirement for employment of fire dispatchers. Clackamas Co. Fire Protection Dist. v. Bureau of Labor, 50 Or App 337, 624 P2d 141 (1981), Sup Ct review denied

That employer attempted to rehire previously laid-off male employe, would not establish unlawful discrimination against female applicant unless it could be demonstrated that offer to rehire was based upon an intent on employer's part to avoid hiring female applicant. Brady v. Bureau of Labor, 55 Or App 619, 639 P2d 673 (1982)

Evidence that female city employee was put in lower classification and given lower wage for performing essentially same duties as her male counterparts afforded rational basis for decision by State Commissioner of Labor finding unlawful disparity of pay by reason of sex. City of Portland v. Bureau of Labor and Ind., 298 Or 104, 690 P2d 475 (1984)

In determining whether blanket hiring age limitation for firefighters was bona fide occupational requirement under this section, Labor Commissioner's consideration of public safety, relationship of chronological age to job performance and practicability of individually screening applicants for physical qualifications was proper. Civil Service Board of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

Blanket hiring age limitation for firefighters was not bona fide occupational requirement reasonably necessary to operation of Fire Bureau. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

Operation of this section to invalidate discriminatory city charter provision limiting hiring age of firefighters does not violate "home rule" amendments of Oregon Constitution. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

Economic justifications for discrimination, such as adverse impact on pension and disability plans, are not to be included as bona fide occupational requirements reasonably necessary to employer's business. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

Where court ruled that plaintiff failed to allege intentional discrimination because of sex, defendant's motion to dismiss plaintiff's claims under this section was granted with leave to amend. Forsberg v. Pacific Northwest Bell Telephone Co., 623 F Supp 117 (1985)

Employer's health plan, providing less medical coverage for female employe's pregnancy than provided for pregnancy of male employe's wife, violated this section. Hillesland v. Paccar, Inc., 80 Or App 286, 722 P2d 1239 (1986), Sup Ct review denied

National Labor Relations Act does not preempt plaintiff's state statutory claim for sex discrimination. Munsey v. Plumbers' Local #51, 85 Or App 396, 736 P2d 615 (1987)

Where action was brought for wrongful discharge and former employer made motion to dismiss wrongful discharge claim for intentional infliction of emotional distress, since claim did not rest on same factual basis as age discrimination claim, claim not barred under Oregon law. Malone v. Safeway Stores, Inc., 698 F Supp 207 (D. Or. 1987)

Discrimination statute does not preempt tort of intentional infliction of emotional distress. Palmer v. Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988)

Where discharged employee brought age discrimination action against employer, fact that all four of employees terminated after "government work" investigation were over age of 40 is insufficient evidence to establish a disparate impact claim based upon age discrimination in absence of evidence that hourly workers under age of 40 who engaged in similar degree of "government work" were spared from discharge and motion for summary judgment granted. John v. Georgia-Pacific Corp., 697 F Supp 1156 (D. Or. 1988)

Where employer and union entered collective bargaining negotiations and created new position for mechanized loop testing, it did not violate this section in paying woman less than men in prior similar position of test desk technician. Forsberg v. Pacific Northwest Bell Telephone Co., 840 F2d 1409 (1988)

Where terminated employee sued former employer for wrongful discharge alleging employer violated covenants of good faith and fair dealing in express and implied employment contract, termination of employee in order to deprive employee of benefits to which employee would otherwise have become entitled if employment continued is breach of obligation to perform in good faith. Messer v. Portland Adventist Medical Center, 707 F Supp 449 (D. Or. 1989)

Where defendant's adverse actions were substantial factor in deterioration of plaintiff's health and plaintiff left employment because of defendant's retaliation, plaintiff was constructively discharged in violation of this section. Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (1990)

Discharge because of pregnancy does not state claim of wrongful discharge, but is unlawful act of sex discrimination. Cross v. Eastlund, 103 Or App 138, 796 P2d 1214 (1990), Sup Ct review denied

Plaintiff who resigns from employment must establish constructive discharge by showing that defendant deliberately created or maintained working conditions with purpose of forcing her to resign. Bell v. First Interstate Bank, 103 Or App 165, 796 P2d 1226 (1990)

Isolated instances of racial discrimination by employees that do not result from employer policy do not establish continuing violation. Bell v. First Interstate Bank, 103 Or App 165, 796 P2d 1226 (1990)

Multiple family members allegedly fired in retaliation for one family member's behavior have no derivative wrongful discharge claim. Carlson v. Crater Lake Lumber Co., 103 Or App 190, 796 P2d 1216 (1990), as modified by 105 Or App 314, 804 P2d 511 (1991)

Where allegation is retaliatory termination, there is no common law course of action for wrongful termination because this section provides plaintiff with adequate remedy. Rice v. Comtek Mfg. of Oregon, Inc., 766 F Supp 1544 (1990)

Racial epithets by one employee did not constitute pervasive workplace harassment subjecting employer to liability for maintaining racially hostile work environment. Haskins v. Owens-Corning Fiberglas Corp., 811 F Supp 534 (1992)

Rule that allows religious advances to constitute discrimination where employer is motivated by fact that employee has different religious beliefs does not exceed agency authority. Meltebeke v. Bureau of Labor and Industries, 120 Or App 273, 852 P2d 859 (1993), aff'd 322 Or 132, 903 P2d 351 (1995)

Claim of sexual advances or sexual harassment by supervisor was adequate pleading of discrimination to support claim for intentional infliction of emotional distress and wrongful discharge. McGanty v. Staudenraus, 123 Or App 393, 859 P2d 1187 (1993), aff'd 321 Or 532, 901 P2d 841 (1995)

Standard for determining employer responsibility for hostile work environment by supervisor is whether employer knew or should have known of harassment and failed to take prompt remedial action against supervisor. Mains v. II Morrow, Inc., 128 Or App 625, 877 P2d 88 (1994)

Pervasive and severe conduct by employer regarding statutorily protected area that intentionally causes intimidating, hostile or offensive working environment is discrimination in terms of employment. Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 903 P2d 351 (1995)

Discriminatory action by agent acting within scope of authority is act of employer. Schram v. Albertson's, Inc., 146 Or App 415, 934 P2d 483 (1997)

Discrimination based upon sex of any person with whom person associates includes discrimination based upon sexual orientation of person. Tanner v. OHSU, 157 Or App 502, 971 P2d 435 (1998)

Employer conduct does not need to be sexual in nature to constitute discrimination because of employee's sex. A.L.P. Incorporated v. Bureau of Labor and Industries, 161 Or App 417, 984 P2d 883 (1999)

Sexual harassment by person of same gender may form basis for discrimination claim. Harris v. Pameco Corp., 170 Or App 164, 12 P3d 524 (2000)

Provision in collective bargaining agreement that deters employees from attempt to pursue statutorily protected right to seek judicial or administrative resolution of grievance related to collective bargaining agreement violation is retaliatory and unlawfully discriminatory. PSU Association of University Professors v. PSU, 352 Or 697, 291 P3d 658 (2012)

Person who was sole decision-maker and who acted within course and scope of authority as owner and managing director when person terminated plaintiff's employment cannot be individually liable as to plaintiff's retaliation claims based on aiding and abetting under this section. Aichele v. Blue Elephant Holdings, LLC, 292 F. Supp. 3d 1104 (D. Or. 2017)

Atty. Gen. Opinions

Constitutionality of mortality tables which differentiate between males and females, (1973) Vol 36, p 449; passing increased health insurance premiums resulting from pregnancy coverage on to women employes, (1978) Vol 39, p 328; subject employers providing medical benefits for pregnancy, childbirth or related medical conditions for wives of male employes equal to medical benefits provided for husbands of female employes, (1980) Vol 40, p 231; refusal to employ individual in particular department of employer solely because individual's spouse already employed in department, (1980) Vol 40, p 259

Law Review Citations

75 OLR 633, 1253, 1333 (1996); 36 WLR 503 (2000); 79 OLR 721 (2000); 84 OLR 725 (2005); 50 WLR 195 (2014)


Source

Last accessed
Jun. 26, 2021