Oregon Employment Discrimination

by Joel Christiansen

Oregon employment laws prohibit certain types of workplace discrimination. Employers may be liable to employees and subjected to fines for violations of workplace discrimination laws. However, not all types of workplace discrimination are unlawful or legally actionable.

It is an unlawful employment practice for an employer to refuse to employ or hire an employee, bar or discharge an employee from employment, or discriminate against an employee in compensation, terms, conditions or privileges of employment because of an employee’s race, color, religion, sex, sexual orientation, national origin, marital status, or age. ORS 659A.030(1)(a)-(b). The law also prevents employers from discriminating based on the protected characteristic of “any other person with whom the individual associates.” Id.

In addition to the above-listed protected characteristics, Oregon law defines a number of other protected categories that safeguard employees from employer discrimination. For example, ORS 659A.183(2) makes it illegal for an employer to discriminate against an employee because the individual has inquired about the provisions of the Oregon Family Leave Act, submitted a request for family leave, or invoked any provision of the Oregon Family Leave Act. ORS 659A.040(1) prohibits employers from discriminating against an employee “because the worker has applied for benefits or invoked or utilized the procedures [of the workers’ compensation system] or has given testimony under the provisions of those laws.” Additional protected classes include whistleblowers (ORS 659A.199, ORS 659A.203, ORS 659A.228, and ORS 659A.230), crime victims (ORS 659A.290), persons with disabilities (ORS 659A.112), and uniformed service officers (ORS 659A.082).

Enforcement of Oregon Employment Discrimination Laws

“Any person claiming to be aggrieved by [unlawful employment discrimination] may file a civil action in circuit court.” ORS 659A.885(1). The Oregon Bureau of Labor and Industries (BOLI) Civil Rights Division also enforces anti-discrimination laws.

An employer that unlawful discriminates against an employee may be liable for for the following:

  • Back pay
  • Compensatory damages
  • Punitive damages
  • Injunctive relief and “any other equitable relief that may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay”
  • Costs and reasonable attorney fees at trial and on appeal
  • Expert witness fees reasonably and necessarily incurred in connection with the discrimination claim, at the trial court or agency level and on appeal.

Employees are technically free to assert claims against employers without an attorney. Employees are well-advised, however, to consult with or retain counsel before taking legal action. Employment discrimination claims involve specific timelines and procedures. Failure to correctly follow these timelines and procedures may result in elimination or reduction of legal rights.

Employers have various options for preventing and defending against employment discrimination claims. Employers should seek specialized employment law counsel early and often to discuss concerns related to employment discrimination. Employers sued in state or federal court are required to retain counsel and should do so immediately upon learning of any actual or potential lawsuit. See UPL Advisory Opinion No. 2013-2.

Elements of an Oregon Employment Discrimination Claim

Discrimination in Hiring and Discharge of Employment. To prevail on a claim for discrimination in hiring or discharge of employment, an employee must prove:

  1. The employer refused to hire or discharged the employee; and
  2. The employee’s status in a protected class was a substantial factor in the decision not to hire/to discharge the employee.

Oregon Uniform Civil Jury Instruction No. 59A.02

Discrimination in Terms, Conditions, Compensation, or Privileges of EmploymentTo prevail on a claim for discrimination in the terms, conditions, compensation, or privileges of employment, an employee must prove:

  1. The employer treated the employee adversely with respect to compensation or other terms, conditions, or privileges of employment; and
  2. The employee’s status in a protected class was a substantial factor in the adverse treatment.

Oregon Uniform Civil Jury Instruction No. 59A.01

Substantial Factor“A substantial factor is one that made a difference in an employment decision; that is, the decision would not have been made without it. It need not be the only factor.” Oregon Uniform Civil Jury Instruction No. 59A.03

Employer DefensesEmployer defenses to Oregon employment discrimination claims vary widely on a case-by-case basis. Perhaps the most common defense in employment discrimination cases is an outright denial that employment discrimination occurred. This defense most often focuses on causation and argues that the employer’s adverse employment action was not taken because of the employee’s protected status. Employers that can present legitimate business justifications for an adverse employment-related decision may use that as a basis for defending a discrimination claim. However, because Oregon is an at-will employment state, an employer does not need to offer any reason for terminating an employee in the defense of an Oregon state law claim in Oregon state court.

In addition to denying that discrimination actually occurred, employers may have procedural and affirmative defenses available to provide additional protection from unwarranted or misfiled employee claims. For example, an employer may seek dismissal of a discrimination claim on technical grounds, compel a matter to a more favorable venue or forum, or establish that an employee’s damages should be reduced because the employee failed to mitigate his or her losses. There are a wide variety of potential defenses that must be evaluated and this evaluation should be conducted by an experienced attorney on a case-by-case basis.

Burden of Proof in Employment Discrimination Cases

An employee who brings an Oregon employment discrimination case will have the burden of proof. This means the employee must present admissible evidence to establish the employer’s liability for unlawful discrimination as well as any damage the employer’s unlawful conduct caused or will cause the employee in the future.

In BOLI administrative proceedings, an employee has the burden of proving a case by “substantial evidence”, which BOLI defines as “evidence that would lead a reasonable person to believe the Complainant’s claims are true.” In Oregon Circuit Court, an employee must prove her or his case by the “preponderance of evidence” standard.

Oregon Uniform Civil Jury Instruction 14.02 describes the preponderance standard as follows:

When a party must prove a claim by a preponderance of the evidence, that party must persuade you by evidence that makes you believe the claim is more likely true than not true.

After weighing all of the evidence, if you cannot decide that something is more likely true than not true, you must conclude that the party did not prove it. You should consider all of the evidence, no matter who produced it.

In criminal trials, the state must prove that the person charged with a crime is guilty beyond a reasonable doubt. That is not the standard to use in this civil trial. Instead, the party who is required to prove something by a preponderance of the evidence only has to prove that it is more likely true than not true.