Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions

ORS 659A.142
Discrimination against individual with disability by employment agency, labor organization, place of public accommodation or state government prohibited

  • mental disorder treatment not evidence of inability to manage property


(1)

As used in this section, “state government” has the meaning given that term in ORS 174.111 (“State government” defined).

(2)

It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise discriminate against, any individual because that individual has a disability, or to classify or refer for employment any individual because that individual has a disability.

(3)

It is an unlawful employment practice for a labor organization, because an individual has a disability, to exclude or to expel from its membership such individual or to discriminate in any way against such individual.

(4)

It is an unlawful practice for any place of public accommodation, resort or amusement as defined in ORS 659A.400 (Place of public accommodation defined), or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability.

(5)

(a) It is an unlawful practice for state government to exclude an individual from participation in or deny an individual the benefits of the services, programs or activities of state government or to make any distinction, discrimination or restriction because the individual has a disability.

(b)

Paragraph (a) of this subsection is intended to ensure equal access to available services, programs and activities of state government.

(c)

Paragraph (a) of this subsection is not intended to:

(A)

Create an independent entitlement to any service, program or activity of state government; or

(B)

Require state government to take any action that state government can demonstrate would result in a fundamental alteration in the nature of a service, program or activity of state government or would result in undue financial or administrative burdens on state government.

(6)

Receipt or alleged receipt of treatment for a mental disorder does not constitute evidence of an individual’s inability to acquire, rent or maintain property. [Formerly 659.425; 2003 c.254 §3; 2007 c.70 §297; 2009 c.508 §14]
§§ 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 659.425)

Notes of Decisions

This section imposes upon employer obligation not to reject prospective employe because of physical or mental handicap, unless there is, because of the defect, probability either that employe cannot do job in satisfactory manner or that he can do so only at risk of incapacitating himself. Montgomery Ward v. Bureau of Labor, 280 Or 163, 570 P2d 76 (1977)

In determining whether a particular handicap prevents performance of work involved, applicable standard is "probability of incapacitation" and it is to be determined at time of rejection and not on the basis of increased risk of incapacitation in future. Pacific Motor Trucking Co. v. Bureau of Labor, 64 Or App 361, 668 P2d 446 (1983), Sup Ct review denied

Private transportation company is prohibited by this section from refusing transportation to individual because of confinement to wheelchair. Bush v. Greyhound Lines, Inc., 295 Or 619, 669 P2d 324 (1983)

Count I of complaint alleging that plaintiff had record of diabetes, high blood pressure and obesity was correctly dismissed where plaintiff failed to allege that conditions substantially limited him in major life activity; count II alleging same conditions and that defendant "regarded plaintiff as having an impairment that would prevent him from being employed" states cause of action under paragraph (1)(c) of this section. Devaux v. State of Oregon, 68 Or App 322, 681 P2d 156 (1984)

Under [former] ORS 659.400, employment is major life activity and it was clear that, because of his color vision, plaintiff's employment opportunity in engine service with railroad had been limited. Quinn v. Southern Pacific Transportation Co., 76 Or App 617, 711 P2d 139 (1985), Sup Ct review denied

Employe, suffering from diabetic and hyperthyroid condition, was, under facts of case, not discharged in response to his disability but in response to the uncontrollable behavior that resulted therefrom and employer had reasonable basis to conclude that employe could not perform his job duties without probability of harm to himself and others. Pannel v. Wanke Panel Co., 618 F Supp 41 (1985)

Where, under preponderance of evidence, there was no reasonable probability employe was unable to perform work duties, employment discharge because of physical impairment was unlawful employment practice under this section. Brown v. City of Portland, 80 Or App 464, 722 P2d 1282 (1986), Sup Ct review denied

Although defendants had affirmative duty pursuant to this section to make "reasonable accommodation" for plaintiff's physical impairment, they did not violate this duty by failing to allow plaintiff to permanently occupy one of limited number of rotating positions because to do so would have imposed "undue hardship" on program involved. Blumhagen v. Clackamas County, 91 Or App 510, 756 P2d 650 (1988), Sup Ct review denied

This section, which makes firing employe because of physical impairment unlawful where with reasonable accommodation by employer individual could perform work involved was not inextricably intertwined with consideration of terms in labor contract and created mandatory and independent state right not preempted by section 301 of Labor Management Relations Act. Miller v. AT&T Network Systems, 850 F2d 543 (1988)

Where handicapped employee brought action against employer under California Fair Employment and Housing Act for illegal discharge, claim not preempted by Section 301 of Labor Management Relations Act because claim does not require interpretation of collective bargaining agreement. Ackerman v. Western Elec. Co., Inc., 860 F2d 1514 (9th Cir. 1988)

Employer violates this section if it discriminates against employee on basis of what it perceives to be impairment that substantially limits major life activity and employee does not actually have condition perceived. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 780 P2d 743 (1989), Sup Ct review denied

Where plaintiff alleged that her pregnancy did not impair her ability to do her job but that employer regarded it as such an impairment, plaintiff did not fail to state claim. Melvin v. Kim's Restaurant, Inc., 308 Or 177, 776 P2d 1286 (1989)

Where there was reasonable probability that employee was unable to perform work duties without endangering himself or others, employer did not commit unlawful employment practice by discharging him because of mental impairment. Welch v. Champion International Corp., 101 Or App 511, 791 P2d 152 (1990)

Employer is not required to accommodate employee's physical or mental impairment due to alcoholism, if employee denies such impairment. Braun v. American International Health, 315 Or 460, 846 P2d 1151 (1993)

Claims based on failure to make reasonable accommodation are subject to government liability limitations of [former] ORS 30.270. Griffin v. Tri-Met, 318 Or 500, 870 P2d 808 (1994)

"Employment" refers to specific position or job, not entire profession or job classification. Anglin v. Dept. of Corrections, 160 Or App 463, 982 P2d 547 (1999), Sup Ct review denied

Law Review Citations

16 WLR 541 (1979); 22 WLR 529, 532 (1986); 23 WLR 529, 578 (1987)


Source

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Jun. 26, 2021