Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions

ORS 659A.370
Employer prohibited from entering into agreements that prevent employee from discussing certain unlawful conduct

  • exceptions
  • remedies


(1)

Except as provided in subsections (2) or (4) of this section, it is an unlawful employment practice for an employer to enter into an agreement with an employee or prospective employee, as a condition of employment, continued employment, promotion, compensation or the receipt of benefits, that contains a nondisclosure provision, a nondisparagement provision or any other provision that has the purpose or effect of preventing the employee from disclosing or discussing conduct:

(a)

(A) That constitutes discrimination prohibited by ORS 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited), including conduct that constitutes sexual assault; or

(B)

That constitutes discrimination prohibited by ORS 659A.082 (Discrimination against person for service in uniformed service prohibited) or 659A.112 (Employment discrimination); and

(b)

(A) That occurred between employees or between an employer and an employee in the workplace or at a work-related event that is off the employment premises and coordinated by or through the employer; or

(B)

That occurred between an employer and an employee off the employment premises.

(2)

An employer may enter into a settlement, separation or severance agreement that includes one or more of the following provisions only when an employee claiming to be aggrieved by conduct described under subsection (1) of this section requests to enter into the agreement:

(a)

A provision described in subsection (1) of this section;

(b)

A provision that prevents the disclosure of factual information relating to a claim of discrimination or conduct that constitutes sexual assault; or

(c)

A no-rehire provision that prohibits the employee from seeking reemployment with the employer as a term or condition of the agreement.

(3)

(a) An agreement entered into under subsection (2) of this section must provide that the employee has at least seven days after executing the agreement to revoke the agreement.

(b)

The agreement may not become effective until after the revocation period has expired.

(4)

If an employer makes a good faith determination that an employee has engaged in conduct prohibited by ORS 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited), including sexual assault, conduct prohibited by ORS 659A.082 (Discrimination against person for service in uniformed service prohibited) or 659A.112 (Employment discrimination) or conduct prohibited by this section, the employer may enter into a settlement, separation or severance agreement that includes one or more of the following provisions:

(a)

A provision described in subsection (1) of this section;

(b)

A provision that prevents the disclosure of factual information that relates to a claim of discrimination or conduct that conduct that constitutes sexual assault; or

(c)

A no-rehire provision that prohibits the employee from seeking reemployment with the employer as a term or condition of the agreement.

(5)

An employee may file a complaint under ORS 659A.820 (Complaints) for violations of this section and may bring a civil action under ORS 659A.885 (Civil action) and recover relief as provided by ORS 659A.885 (Civil action) (1) to (3).

(6)

This section does not apply to an employee who is tasked by law to receive confidential or privileged reports of discrimination, sexual assault or harassment.

(7)

As used in this section, “sexual assault” means unwanted conduct of a sexual nature that is inflicted upon a person or compelled through the use of physical force, manipulation, threat or intimidation. [2019 c.343 §2]
Note: 659A.370 (Employer prohibited from entering into agreements that prevent employee from discussing certain unlawful conduct) becomes operative October 1, 2020. See section 11, chapter 343, Oregon Laws 2019.
§§ 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


Source

Last accessed
Jun. 26, 2021