Age Discrimination Law in Oregon

by Joel Christiansen

Oregon state law makes it unlawful for Oregon employers to “discriminate against [an] individual in compensation or in terms, conditions or privileges of employment” or “refuse to hire or employ [an] individual or to bar or discharge [an] individual from employment” because of an individual’s age. ORS 659A.030(1)(a)-(b). Likewise, the federal Age Discrimination in Employment Act of 1967 (ADEA) prohibits covered employers from using age as the basis for certain employment-related decisions. 29 U.S.C. § 623.

Does Oregon or Federal Age Discrimination Law Apply?

Depending on the particular case, Oregon law, the ADEA, or both may apply. Oregon age discrimination law generally has broader application in terms of (a) the employees it protects, and (b) the employers to which it applies. However, in many cases, both Oregon and federal age discrimination law will apply. An experienced employment attorney can help you determine the pros and cons associated with pursuing Oregon and federal age discrimination claims.

Which Oregon Employees Do Age Discrimination Laws Protect?

Oregon Law: Oregon age discrimination law protects employees (and applicants) over the age of 18. ORS 659A.030(1)(a)-(e). In addition to prohibiting discrimination against older workers, Oregon law also makes it an unlawful employment practice for employers to favor older employees over younger employees. Oregon age discrimination laws do not protect independent contractors or “any individual employed by the individual’s parents, spouse or child or in the domestic service of any person.” ORS 659A.001(3).

Federal Law: Since 1986, the ADEA has applied to employees ages 40 and above. 29 U.S.C. § 631. Prior to that, the ADEA only covered employees ages 40-70. Like Oregon law, the ADEA does not apply to non-employees, such as independent contractors. 29 U.S.C. § 623(a); 29 U.S.C. § 630(f)Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495 (11th Cir. 1993)

Do Age Discrimination Laws Apply to All Employers in Oregon?

Oregon Law: Oregon age discrimination law applies to all employers, labor organizations, and employment agencies that employ individuals in Oregon. ORS 659A.030(1)(a)-(e). ORS 659A.001(4) defines employer as “any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.” Unlike the ADEA, small employers are not exempt from Oregon age discrimination law. Oregon state law also creates liability for individuals who aid, abet, incite, compel or coerce age discrimination. ORS 659A.030(1)(g).

Federal Law: Like Oregon law, the ADEA prohibits employers, labor organizations, and employment agencies from engaging in unlawful age discrimination. 29 U.S.C. § 623. However, the ADEA does not apply to employers unless they employed 20 or more employees each work day in each of 20 or more calendar weeks in the current or preceding calendar year. 29 U.S.C. § 630(b).

What Types of Conduct Do Age Discrimination Laws Prohibit?

Oregon Law: ORS 659A.030(1)(a)-(e) make it illegal for employers to:

  • Refuse to hire or employ an individual or to bar or discharge an individual from employment based on an individual’s age;
  • Discriminate against an individual in compensation or in terms, conditions or privileges of employment based on an individual’s age; or
  • Print or circulate any statement, advertisement or publication that expresses any limitation, specification or discrimination as to an individual’s age.

Federal Law: The ADEA makes it illegal for covered employers to:

  • Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s age;
  • Limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his/her status as an employee, because of such individual’s age.
  • Print or publish any notice or advertisement indicating any preference, limitation, specification, or discrimination, based on age.

Age Discrimination Includes Age-Related Harassment

The law prohibits certain kinds of harassment based on age. According to the EEOC, “[a]lthough the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”

An employer’s liability for age -based harassment will depend on (a) the relationship between the harasser and victim; (b) the employer’s knowledge of the harassment; (c) the employer’s harassment-related policies, if any, the employer communicated to the employee; and (d) corrective measures, if any, the employer takes to stop the harassment and prevent it from happening again.

How Do Oregon Employees Enforce Age Discrimination Laws?

Employees subjected to age discrimination have the right to bring legal claims against employers who break the law. ORS 659A.820; ORS 659A.885; 29 U.S.C. § 626(c)-(d). Oregon and federal law provide a broad range of remedies. These remedies include lost wages, equitable relief such as injunctions and reinstatement, non-economic damages, punitive damages, liquidated damages, costs, attorney fees and interest.

We strongly encourage age discrimination victims to seek legal counsel to enforce their rights. Employment attorneys help employees pursue their legal rights through negotiation, government agency proceedings (EEOC/BOLI), and, when necessary, litigation and trial.

Other Laws Related to Age Discrimination

In 1990, Congress passed the Older Workers Benefits Protection Act (OWBPA). The OWBPA requires employers to include specific language in severance agreements and other releases of ADEA claims in order for such releases to be legally binding. Most notably, the OWBPA requires employers to give employees at least 21 days to consider any ADEA waiver as well as a 7 day period in which to revoke the release. 29 C.F.R. 1625.22. Employers must also advise employees in writing to consult an attorney before accepting the agreement. Id. The OWBPA provides other requirements to ensure that employee waivers of age discrimination claims are “knowing and voluntary.” (More information on OWBPA requirements here.)

The ADEA and related federal regulations also require employers to keep certain records. 29 C.F.R. §1627.3. For example, employers must keep records that reflect the employee’s name, address, date of birth, occupation, rate of pay, and compensation earned each week. 29 C.F.R. §1627.3(a). Employers must also keep the following records:

  • Job applications, resumes, or any other form of employment inquiry whenever submitted to the employer in response to his advertisement or other notice of existing or anticipated job openings, including records pertaining to the failure or refusal to hire any individual,
  • Promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any employee,
  • Job orders submitted by the employer to an employment agency or labor organization for recruitment of personnel for job openings,
  • Test papers completed by applicants or candidates for any position which disclose the results of any employer-administered aptitude or other employment test considered by the employer in connection with any personnel action,
  • The results of any physical examination where such examination is considered by the employer in connection with any personnel action,
  • Any advertisements or notices to the public or to employees relating to job openings, promotions, training programs, or opportunities for overtime work.

29 C.F.R. §1627.3(b)(1)