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BUREAU OF LABOR AND INDUSTRIES
DIVISION 5
DISCRIMINATION
839-005-0000
Purpose and Scope of these Rules
(1) It is the policy of the State of
Oregon that unlawful discrimination on the basis of race, color, religion, sex,
sexual orientation, national origin, marital status, age, disability and other classes
protected under Oregon statutes is a matter of state concern and that such discrimination
threatens individual rights and privileges and menaces the institutions and foundations
of a free democratic state.
(2) Prohibited discrimination
is a basis of unlawful practices described in ORS Chapter 659A and other chapters
of the Oregon statutes.
(3) The Civil Rights Division
of the Bureau of Labor and Industries (division) is responsible for protecting individual
rights through the enforcement of civil rights statutes prohibiting unlawful practices.
(4) The purpose of these
rules is to implement, interpret and describe the division's approach to civil rights
enforcement under the bureau’s jurisdiction.
(5) These rules apply to
all inquiries and complaints received by the division on or after the effective
date of these rules.
(6) An individual claiming
a violation of the civil rights statutes may file a complaint with the division
as provided in OAR 839-003-0025, or 839-003-0200 for complaints alleging housing
discrimination filed under ORS 659A.145, 659A.421 or the federal Fair Housing Act
(42 U.S.C. §3601–3617).
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A
Hist.: BL 9-1982, f. &
ef. 6-11-8; BL 4-1996, f. & cert. ef. 3-12-96; BLI 19-2000, f. & cert. ef.
9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 36-2007, f. 12-27-07 cert.
ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative
correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09;
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert. ef. 2-24-10;
BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0003
Definitions: Enforcement of Laws
Prohibiting Unlawful Practices
As used in enforcing ORS Chapter 659A,
including housing discrimination under 659A.145 or 659A.421 or the federal Fair
Housing Act (42 U.S.C. §3601–3617):
(1) “Aggrieved Person”
means either:
(a) A person who is, or was
at any time, eligible to file a complaint under ORS 659A.820 or who is otherwise
similarly situated; or
(b) A person who files a
complaint under ORS 659A.825.
(2) "Bureau" means the Bureau
of Labor and Industries.
(3) "Division" means the
Civil Rights Division of the Bureau of Labor and Industries.
(4) "Employee" does not include
any individual employed by that individual's parents, spouse or child or in the
domestic service of any person.
(5) "Employer" means any
person in this state who, directly or through an agent, engages or utilizes the
personal service of one or more employees, reserving the right to control the means
by which such service is or will be performed. Employer also includes any public
body that, directly or through an agent, engages or utilizes the personal service
of one or more employees, reserving the right to control the means by which such
service is or will be performed, including all officers, agencies, departments,
divisions, bureaus, boards and commissions of the legislative, judicial and administrative
branches of the state, all county and city governing bodies, school districts, special
districts, municipal corporations and all other political subdivisions of the state.
Employer also includes any person who is in an employment relationship with an intern
as defined in subsection (10) of this rule.
(6) "Employment agency" includes
any person undertaking to procure employees or opportunities to work.
(7) “Federal housing
law” means the federal Fair Housing Act (42 U.S.C. §3601–3617).
(8) “Gender expression”
means the manner in which an individual’s gender identity is expressed, including,
but not limited to, through dress, appearance, manner, or speech, whether or not
that expression is different from that traditionally associated with the individual’s
assigned sex at birth.
(9) “Gender identity”
means an individual’s gender-related identity, whether or not that identity
is different from that traditionally associated with the individual’s assigned
sex at birth, including, but not limited to, a gender identity that is transgender
or androgynous.
(10) “Intern”
means a person who performs work for an employer for the purpose of training if:
(a) The employer is not committed
to hire the person performing the work at the conclusion of the training period;
(b) The employer and the
person performing the work agree in writing that the person performing the work
is not entitled to wages for the work performed; and
(c) The work performed:
(A) Supplements training
given in an education environment that may enhance employability of the intern;
(B) Provides experience for
the benefit of the person performing the work;
(C) Does not displace regular
employees;
(D) Is performed under the
close supervision of existing staff; and
(E) Provides no immediate
advantage to the employer providing the training and may occasionally impede the
operations of the employer.
(d) An intern is considered
to be in an employment relationship with an employer for the purposes of employee
protections provided under ORS 659A.030, 659A.082, 659A.109, 659A.112, 659A.136,
659A.142, 659A.199, 659A.230, 659A.233, 659A.236, 659A.290, 659A.300, 659A.303,
659A.306, and 659A.315.
(e) “Intern”
includes any person meeting the description set forth in this rule regardless of
the title of the person’s position or whether they are currently enrolled
in an education or training program.
(11) "Labor organization"
includes any organization that is constituted for the purpose, in whole or in part,
of collective bargaining or in dealing with employers concerning grievances, terms
or conditions of employment or of other mutual aid or protection in connection with
employees.
(12) “Person”
includes one or more individuals, partnerships, associations, labor organizations,
limited liability companies, joint-stock companies, corporations, legal representatives,
trustees, and trustees in bankruptcy or receivers. “Person” also includes
a public body as defined in ORS 30.260. For the purposes of 659A.145 or 659A.421
or the federal Fair Housing Act (42 U.S.C. §3601–3617), “person”
also includes fiduciaries, mutual companies, trusts and unincorporated organizations.
(13) "Protected class" means
a group of people protected by law from discrimination on the basis of a shared
characteristic, such as race, sex, sexual orientation, disability, or other, or
a perception of that characteristic.
(14) "Respondent" includes
any person against whom a complaint or charge of unlawful practices is filed with
the division or whose name has been added to such complaint or charge pursuant to
ORS 659A.835(1).
(15) “Sex” means
the anatomical, physiological and genetic characteristics associated with being
male or female.
(16) “Sexual orientation”
means an individual’s actual or perceived heterosexuality, homosexuality,
bisexuality, or gender identity, regardless of whether the individual’s gender
identity, appearance, expression or behavior differs from that traditionally associated
with the individual’s assigned sex at birth.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.001
& 659A.350
Hist.: BLI 19-2000, f. &
cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 36-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08;
Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08
thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert.
ef. 2-24-10; BLI 14-2013, f. & cert. ef. 12-30-13; BLI 11-2015, f. & cert.
ef. 8-4-15
839-005-0005
Unlawful Discrimination Defined
(1) To discriminate means to make a
distinction between individuals or groups based on common characteristics, real
or perceived. Certain kinds of discrimination are unlawful. Oregon civil rights
laws generally prohibit making decisions in employment, housing, places of public
accommodation and career schools because an individual is a member of a class protected
by these statutes.
(2) When an individual files
a complaint with the division alleging unlawful discrimination, the division must
determine whether substantial evidence of such discrimination exists.
(3) That a private employer
may give employment preference in the hiring or promotion of employees under OL
Ch. 86, Sec. 2 2014 (persons in uniformed service and their widows and widowers)
does not preclude the filing of a complaint under ORS chapter 659A.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A;
OL Ch. 86, Sec. 2 2014
Hist.: BL 9-1982, f. &
ef. 6-11-82; BL 4-1996, f. & cert. ef. 3-12-96; BLI 19-2000, f. & cert.
ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 8-2010, f. & cert.
ef. 2-24-10; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0010
Discrimination Theories: Employment
(1) Substantial evidence of intentional
unlawful discrimination exists if the division's investigation reveals evidence
that a reasonable person would accept as sufficient to support the following elements:
(a) The respondent is a respondent
as defined by ORS 659A.001(10) and OAR 839-005-0003(14) of these rules;
(b) The aggrieved person
is a member of a protected class;
(c) The aggrieved person
was harmed by an action of the respondent; and
(d) The aggrieved person’s
protected class was the motivating factor for the respondent's action. In determining
whether the aggrieved person’s protected class was the reason for the respondent's
action, the division uses whichever of the following theories applies:
(A) Specific Intent Theory:
The respondent knowingly and purposefully discriminates against an individual because
of that individual's membership in a protected class, unless the respondent can
show that a bona fide occupational qualification or a bona fide voluntary, court-ordered
affirmative action plan (OAR 839-005-0013) allows the action.
(B) Different or Unequal
Treatment Theory: The respondent treats members of a protected class differently
than others who are not members of that protected class. When the respondent makes
this differentiation because of the individual's protected class and not because
of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing
a case of different or unequal treatment:
(i) There must be substantial
evidence that the aggrieved person was harmed by an action of the respondent under
circumstances that make it appear that the respondent treated the aggrieved person
differently than comparably situated individuals who were not members of the aggrieved
person’s protected class. Substantial evidence of discrimination exists if
the division's investigation reveals evidence that a reasonable person would accept
as sufficient to support that protected class membership was a motivating factor
for the respondent's alleged unlawful action. If the respondent fails to rebut this
evidence with evidence of a legitimate non-discriminatory reason, the division will
conclude that substantial evidence of unlawful discrimination exists.
(I) Pretext: If the respondent
rebuts the evidence with evidence of a legitimate non-discriminatory reason, but
there is substantial evidence that the respondent’s reason is a pretext for
discrimination, the division will conclude there is substantial evidence of unlawful
discrimination.
(II) Mixed Motive: If the
respondent presents substantial evidence that a legitimate, non-discriminatory reason
contributed to the respondent's action, but the division finds the individual's
protected class membership was also a motivating factor in the respondent's action,
the division will determine there is substantial evidence of discrimination.
(ii) The aggrieved person
at all times has the burden of proving that the aggrieved person’s protected
class was the reason for the respondent's unlawful action.
(2) Adverse Impact Discrimination:
Substantial evidence of adverse impact discrimination does not require establishment
of intentional discrimination as provided in (1) of this rule. Adverse impact discrimination
exists if the division's investigation reveals evidence that a reasonable person
would accept as sufficient to support the following elements:
(a) The respondent is a respondent
as defined by ORS 659A.001(10) and OAR 839-005-0003(14) of these rules;
(b) The respondent has a
standard or policy that is applied equally.
(c) The standard or policy
has the effect of screening out or otherwise affecting members of a protected class
at a significantly higher rate than others who are not members of that protected
class; and
(d) The aggrieved person
is a member of the protected class adversely affected by the respondent's standard
or policy and has been harmed by the respondent's application of the standard or
policy.
(3) An employer must reasonably
accommodate an employee or applicant's religious belief, observance or practice
unless the employer can demonstrate that such accommodation would cause undue hardship
on the employer's business (see OAR 839-005-0140).
(4) Harassment: Harassment
based on an individual's protected class is a type of intentional unlawful discrimination.
In cases of alleged unlawful sexual harassment in employment see OAR 839-005-0030.
(a) Conduct of a verbal or
physical nature relating to protected classes other than sex is unlawful when substantial
evidence of the elements of intentional discrimination, as described in section
(1) of this rule, is shown and:
(A) Such conduct is sufficiently
severe or pervasive to have the purpose or effect of unreasonably interfering with
an individual's work performance or creating an intimidating, hostile or offensive
working environment;
(B) Submission to such conduct
is made either explicitly or implicitly a term or condition of employment; or
(C) Submission to or rejection
of such conduct is used as the basis for employment decisions affecting that individual.
(b) The standard for determining
whether harassment is sufficiently severe or pervasive to create a hostile, intimidating
or offensive working environment is whether a reasonable person in the circumstances
of the complaining individual would so perceive it.
(c) Employer Proxy: An employer
is liable for harassment when the harasser's rank is sufficiently high that the
harasser is the employer's proxy, for example, the employer's president, owner,
partner or corporate officer.
(d) Harassment by Supervisor
plus Tangible Employment Action: An employer is liable for harassment by a supervisor
with immediate or successively higher authority over an individual when the harassment
results in a tangible employment action that the supervisor takes or causes to be
taken against the individual. A tangible employment action includes, but is not
limited to, any of the following:
(A) Terminating employment,
including constructive discharge;
(B) Failing to hire;
(C) Failing to promote; or
(D) Changing a term or condition
of employment, such as work assignment, work schedule, compensation or benefits
or making a decision that causes a significant change in an employment benefit.
(e) Harassment by Supervisor,
No Tangible Employment Action: When harassment by a supervisor with immediate or
successively higher authority over the individual is found to have occurred, but
no tangible employment action was taken, the employer is liable if:
(A) The employer knew of
the harassment, unless the employer took immediate and appropriate corrective action.
(B) The employer should have
known of the harassment. The division will find that the employer should have known
of the harassment unless the employer can demonstrate:
(i) That the employer exercised
reasonable care to prevent and promptly correct any harassing behavior; and
(ii) That the complaining
individual unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to otherwise avoid harm.
(f) Harassment by Coworkers
or Agents: An employer is liable for harassment by the employer's employees or agents
who do not have immediate or successively higher authority over the complaining
individual when the employer knew or should have known of the conduct, unless the
employer took immediate and appropriate corrective action.
(g) Harassment by Non-Employees:
An employer is liable for harassment by non-employees in the workplace when the
employer or the employer's agents knew or should have known of the conduct unless
the employer took immediate and appropriate corrective action. In reviewing such
cases, the division will consider the extent of the employer's control and any legal
responsibility the employer may have with respect to the conduct of such non-employees.
(h) Withdrawn Consent: An
employer may be liable for harassment by the employer's supervisory or non-supervisory
employees, agents or non-employees even if the acts complained of were of a kind
previously consented to by the complaining individual, if the employer knew or should
have known that the complaining individual had withdrawn consent to the offensive
conduct.
(i) When employment opportunities
or benefits are granted because of an individual's submission to an employer's harassment,
the employer is liable for unlawful discrimination against other individuals who
were qualified for but denied that opportunity or benefit.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A
Hist.: BL 9-1982, f. &
ef. 6-11-82; BL 4-1996, f. & cert. ef. 3-12-96; BLI 6-1998, f. & cert. ef.
10-22-98; BLI 19-2000, f. & cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef.
5-17-02; BLI 3-2007, f. 1-29-07, cert. ef. 2-2-07; BLI 36-2007, f. 12-27-07 cert.
ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative
correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09;
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f.
12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011,
f. 10-13-11, cert. ef. 10-14-11; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0011
Constructive Discharge from Employment
Constructive discharge occurs when an
individual leaves employment because of unlawful discrimination. The elements of
a constructive discharge are:
(1) The employer intentionally
created or intentionally maintained discriminatory working conditions related to
the individual's protected class status;
(2) The working conditions
were so intolerable that a reasonable person in the individual's circumstances would
have resigned because of them;
(3) The employer desired
to cause the individual to leave employment as a result of those working conditions,
or knew or should have known that the individual was certain, or substantially certain,
to leave employment as a result of the working conditions; and
(4) The individual left employment
as a result of the working conditions.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A
Hist.: BLI 19-2000, f. &
cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; Renumbered from 839-005-0035,
BLI 7-2010, f. & cert. ef. 2-24-10; BLI 14-2013, f. & cert. ef. 12-30-13;
BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0013
Bona Fide Occupational Qualification
(BFOQ) and Affirmative Action Plan Exceptions in Employment
(1) Discrimination is not unlawful if
it is based on a bona fide occupational qualification (BFOQ), as provided in ORS
659A.030(1)(a). To prove a BFOQ, the employer must show that the BFOQ is reasonably
necessary to the normal operation of the business. If so, the employer must then
show:
(a) A factual basis exists
for believing that all or substantially all individuals in the protected class adversely
affected by the BFOQ would be unable to perform safely and efficiently the tasks
required in the job; or
(b) It is impossible or highly
impractical to screen applicants on an individual basis.
(2) An employer may not claim
a BFOQ for such reasons as:
(a) Customer, co-worker or
employer preference;
(b) Stereotypes or assumed
characteristics of a protected class.
(3) When discrimination is
based on a bona fide voluntary affirmative action plan, it is not unlawful if the
plan:
(a) Is a temporary measure;
(b) Has the purpose of eliminating
the effects of past discrimination; and
(c) Does not unnecessarily
trammel the interests of other protected classes.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.030
Hist.: BLI 19-2000, f. &
cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; Renumbered from 839-005-0045,
BLI 7-2010, f. & cert. ef. 2-24-10; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0014
Successors in Interest: Employment
Discrimination
An employer's liability for unlawful
discrimination under ORS 659A.030 and OAR 839-005-0010 to 839-005-0045 extends to
a successor employer. Determining whether a respondent is a successor employer involves
a nine-part test. Not every element of the test need be present to find an employer
to be a successor; the facts must be considered together to reach a determination:
(1) Whether respondent had
notice of the charge at the time of acquiring or taking over the business;
(2) The ability of the predecessor
to provide relief;
(3) Whether there has been
a substantial continuity of business operations;
(4) Whether the respondent
uses the same plant as the predecessor;
(5) Whether respondent uses
the same or substantially the same work force as the predecessor;
(6) Whether respondent uses
the same or substantially the same supervisory personnel as the predecessor;
(7) Whether under respondent
the same jobs exist under substantially the same working conditions as under the
predecessor;
(8) Whether respondent uses
the same machinery, equipment and methods of production as the predecessor;
(9) Whether respondent produces
the same product as the predecessor.
Stat. Auth.: ORS 659A.805
Stats. Implemented: 659A
Hist.: BLI 10-2002, f. &
cert. ef. 5-17-02; Renumbered from 839-005-0050, BLI 7-2010, f. & cert. ef.
2-24-10; BLI 11-2015, f. & cert. ef. 8-4-15
Employment Discrimination Based
on Sex or Sexual Orientation
839-005-0021
Discrimination Based on Sex
(1) Employers are not required to treat
all employees exactly the same, but are prohibited from using sex as the basis for
employment decisions with regard to hiring, promotion or discharge; or in terms,
conditions or privileges of employment such as benefits and compensation.
(2) Discrimination because
of sex includes sexual harassment, discrimination based on pregnancy, childbirth
and medical conditions and occurrences related to pregnancy and childbirth.
(3) In very rare instances,
sex may be a bona fide occupational qualification (BFOQ), as defined in OAR 839-005-0013.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.029
& 659A.030
Hist.: BLI 19-2000, f. &
cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 35-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 11-2015, f. &
cert. ef. 8-4-15
839-005-0026
Employment Protections and Rights
Relating to Pregnancy
(1) Pregnant women are protected from
sex discrimination in employment.
(2) In judging the physical
ability of an individual to work, pregnant women must be treated the same as males,
non-pregnant females and other employees with off-the-job illnesses or injuries.
(3) The statutes prohibit
discrimination regarding employee and dependent spouse or domestic partner benefits
for pregnancy when employee and dependent spouse or domestic partner benefits exist
for other medical conditions.
(4) Women needing to be absent
from work because of pregnancy or childbirth may have rights under the Oregon Family
Leave Act, as provided in ORS 659A.150 to 659A.186 and OAR 839-009-0200 to 839-009-0320.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.029,
659A.030, 659A.150-.186
Hist.: BLI 19-2000, f. &
cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 35-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08;
Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08
thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2011, f. 10-13-11,
cert. ef. 10-14-11; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0030
Sexual Harassment in Employment
(1) Sexual harassment is unlawful discrimination
on the basis of sex and includes the following types of conduct:
(a) Unwelcome sexual advances,
requests for sexual favors, or other conduct of a sexual nature when such conduct
is directed toward an individual because of that individual's sex and:
(A) Submission to such conduct
is made either explicitly or implicitly a term or condition of employment; or
(B) Submission to or rejection
of such conduct is used as the basis for employment decisions affecting that individual.
(b) Any unwelcome verbal
or physical conduct that is sufficiently severe or pervasive to have the purpose
or effect of unreasonably interfering with work performance or creating a hostile,
intimidating or offensive working environment.
(2) The standard for determining
whether harassment based on an individual's sex is sufficiently severe or pervasive
to create a hostile, intimidating or offensive working environment is whether a
reasonable person in the circumstances of the complaining individual would so perceive
it.
(3) Employer proxy: An employer
is liable for harassment when the harasser's rank is sufficiently high that the
harasser is the employer's proxy, for example, the respondent's president, owner,
partner or corporate officer.
(4) Harassment by Supervisor
plus Tangible Employment Action: An employer is liable for sexual harassment by
a supervisor with immediate or successively higher authority over an individual
when the harassment results in a tangible employment action that the supervisor
takes or causes to be taken against that individual. A tangible employment action
includes but is not limited to the following:
(a) Terminating employment,
including constructive discharge;
(b) Failing to hire;
(c) Failing to promote; or
(d) Changing a term or condition
of employment, such as work assignment, work schedule, compensation or benefits
or making a decision that causes a significant change in an employment benefit.
(5) Harassment by Supervisor,
No Tangible Employment Action: When sexual harassment by a supervisor with immediate
or successively higher authority over an individual is found to have occurred, but
no tangible employment action was taken, the employer is liable if:
(a) The employer knew of
the harassment, unless the employer took immediate and appropriate corrective action.
(b) The employer should have
known of the harassment. The division will find that the employer should have known
of the harassment unless the employer can demonstrate:
(A) That the employer exercised
reasonable care to prevent and promptly correct any sexually harassing behavior;
and
(B) That the aggrieved person
unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to otherwise avoid harm.
(6) Harassment by Co-Workers
or Agents: An employer is liable for sexual harassment by the employer's employees
or agents who do not have immediate or successively higher authority over the aggrieved
person when the employer knew or should have known of the conduct, unless the employer
took immediate and appropriate corrective action.
(7) Harassment by Non-Employees:
An employer is liable for sexual harassment by non-employees in the workplace when
the employer or the employer's agents knew or should have known of the conduct unless
the employer took immediate and appropriate corrective action. In reviewing such
cases the division will consider the extent of the employer's control and any legal
responsibility the employer may have with respect to the conduct of such non-employees.
(8) Withdrawn Consent: An
employer is liable for sexual harassment of an individual by the employer's supervisory
or non-supervisory employees, agents or non-employees, even if the acts complained
of were of a kind previously consented to by the aggrieved person, if the employer
knew or should have known that the aggrieved person had withdrawn consent to the
offensive conduct.
(9) When employment opportunities
or benefits are granted because of an individual's submission to an employer's sexual
advances, requests for sexual favors, or other sexual harassment, the employer is
liable for unlawful sex discrimination against other individuals who were qualified
for but denied that opportunity or benefit.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.030
Hist.: BLI 19-2000, f. &
cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 46-2006, f. 12-29-06,
cert. ef. 1-3-07; BLI 35-2007, f. 12-27-07 cert. ef. 1-1-08; BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0031
Exceptions to Discrimination in
Employment and Housing Based on Sexual Orientation or Religion
(1) The following actions are not unlawful
practices under ORS chapter 659A, including housing discrimination under ORS 659A.145
or 659A.421 or the federal Fair Housing Act (42 U.S.C. §3601–3617):
(a) Housing and the use of
facilities. It is not an unlawful practice for a bona fide church or other religious
institution to take any action with respect to housing or the use of facilities
when:
(A) The action taken is based
on a bona fide religious belief about sexual orientation; and
(B) The housing or the use
of facilities involved is closely connected with or related to the primary purpose
of the church or institution; and
(C) The housing or the use
of facilities involved is not connected with a commercial or business activity that
has no necessary relationship to the church or institution.
(b) Employment Preference.
It is not an unlawful employment practice for a bona fide church or other religious
institution, including but not limited to a school, hospital or church camp, to
prefer an employee, or an applicant for employment, of one religious sect or persuasion
over another if:
(A) The employee or applicant
belongs to the same religious sect or persuasion as the church or institution; and
(B) In the opinion of the
church or institution, the preference will best serve the purposes of the church
or institution; and
(C) The employment involved
is closely connected with or related to the primary purposes of the church or institution;
and
(D) The employment involved
is not connected with a commercial or business activity that has no necessary relationship
to the church or institution.
(c) Employment Actions. It
is not an unlawful employment practice for a bona fide church or other religious
institution to take any employment action based on a bona fide religious belief
about sexual orientation when:
(A) The employment position
involved is directly related to the operation of the church or other place of worship,
such as clergy, religious instructors and support staff;
(B) The employment position
involved is in a nonprofit religious school, nonprofit religious camp, nonprofit
religious day care center, nonprofit religious thrift store, nonprofit religious
bookstore, nonprofit religious radio station or nonprofit religious shelter; or
(C) The employment position
involves religious activities, as long as the employment position:
(i) Is closely connected
with or related to the primary purpose of the church or institution; and
(ii) Is not connected with
a commercial or business activity that has no necessary relationship to the church
or institution.
(d) Dress Code. An employer
is not prohibited 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.
(2) The above exceptions
do not excuse a failure to provide reasonable and appropriate accommodations permitting
all persons access to restrooms consistent with their expressed gender.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS Ch
659A
Hist.: BLI 35-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08;
Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08
thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; Renumbered from 839-005-0016,
BLI 7-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11;
BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0036
Commissioner’s Complaint for
Discrimination Based on Employment Status
(1) Pursuant to ORS 659A.550 and except
as permitted under ORS Chapter 240 or any other provision of law, it is an unlawful
practice for an employer or employment agency to knowingly or purposefully publish
in print or on the Internet an advertisement for a job vacancy in Oregon that provides
that:
(a) The qualifications for
a job include current employment;
(b) The employer or employment
agency will not consider or review an application for employment submitted by a
job applicant who is currently unemployed; or
(c) The employer or employment
agency will only consider or review applications for employment submitted by job
applicants who are currently employed.
(2) For purposes of the statute
and this rule “employer” includes an employer’s agent, representative
or designee.
(3) ORS 659A.550 does not
prohibit an employer or employment agency from publishing in print or on the Internet
an advertisement for a job vacancy in Oregon:
(a) Setting forth qualifications
for a job vacancy, including but not limited to:
(i) Holding a current and
valid professional or occupational license, certificate, registration, permit or
other credential; or
(ii) A minimum level of education
or training, or professional, occupational or field experience; or
(b) Stating that only applicants
who are current employees of the employer will be considered for the position.
(4) A complaint of a violation
of ORS 659A.550 may be filed only by the Commissioner of the Bureau of Labor and
Industries (commissioner), under ORS 659A.885.
(5) The Civil Rights Division
of the Bureau of Labor and Industries has jurisdiction to accept and investigate
commissioners’ complaints of alleged violations of ORS 659A.550 and to pursue
enforcement against violations. Commissioner’s complaint procedures are found
at OAR 839-003-0100.
(6) An employer or employment
agency found by the commissioner to have violated ORS 659A.550 shall be assessed
a civil penalty as provided under ORS 659A.855.
(7) The commissioner may
issue a cease and desist order under the provisions of ORS 659.885(3).
(8) ORS 659A.550 does not
create or authorize a private cause of action by an aggrieved person against an
employer or employment agency that is alleged to violate or has violated ORS 659A.550.
Stat Auth: ORS 659A.805
Stats. Implemented: ORS 659A.550
Hist.: BLI 11-2015, f. &
cert. ef. 8-4-15
Employer Obtainment or Use of Credit History Information
839-005-0060
Purpose and Scope of these Rules
(1) It is the policy of the State of
Oregon to guarantee individuals the fullest possible participation in the social
and economic life of the state, including employment. Pursuant to ORS 659A.320,
obtainment or use by an employer of information in an applicant’s credit history
impacts the individual’s privacy, and must relate only to the position for
which the individual is being considered or holds. The people of Oregon have the
right to employment without unlawful discrimination on the basis of credit history.
(2) Prohibited discrimination
is a basis of unlawful practices described in ORS Chapter 659A and other chapters
of the Oregon statutes.
(3) The Civil Rights Division
(division) of the Bureau of Labor and Industries enforces ORS 659A.320. These rules
implement and interpret that statute.
(4) Any individual claiming
to be aggrieved by an unlawful practice including a violation of ORS 659A.320 may
file a complaint with the division under ORS 659A.820 or may bring a civil action
under ORS 659A.885.
(5) These rules apply to
all inquiries and complaints received by the division on or after the effective
date of these rules.
Stat. Auth.: 659A.805
Stats. Implemented: ORS 659A.320
Hist.: BLI 16-2010, f. 6-1-10,
cert. ef. 7-1-10; BLI 14-2013, f. & cert. ef. 12-30-13; BLI 11-2015, f. &
cert. ef. 8-4-15
839-005-0065
Definitions Regarding Employer Obtainment
or Use of Credit History Information
(1) “Applicant” means an
individual who has submitted information for the purpose of gaining employment.
(2) “Credit history”
means any written or other communication of any information by a consumer reporting
agency that bears on a consumer’s creditworthiness, credit standing or credit
capacity.
(3) "Division" means the
Civil Rights Division of the Bureau of Labor and Industries.
(4) “Employer”
means 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.
(5) "Respondent" includes
any person against whom a complaint or charge of unlawful practices is filed with
the division or whose name has been added to such complaint or charge pursuant to
ORS 659A.835(1).
(6) “Substantially
job-related” is defined in OAR 839-005-0080.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.320
Hist.: BLI 16-2010, f. 6-1-10,
cert. ef. 7-1-10; BLI 14-2013, f. & cert. ef. 12-30-13; BLI 11-2015, f. &
cert. ef. 8-4-15
839-005-0070
Unlawful Discrimination Based on
Credit History of Applicant or Employee
(1) It is an unlawful employment practice
for an employer to obtain or use for employment purposes information contained in
the credit history of an applicant for employment or an employee, or to refuse to
hire, discharge, demote, suspend, retaliate or otherwise discriminate against an
applicant or an employee with regard to promotion, compensation or the terms, conditions
or privileges of employment based on information in the credit history of the applicant
or employee.
(2) Obtainment or use of
credit history information may not be conducted in a manner that results in adverse
impact discrimination as prohibited by 42 U.S.C. §2000e-2, ORS 659A.030 and
OAR 839-005-0010. A finding of adverse impact discrimination does not require establishment
of intentional discrimination.
(3) ORS 659A.320 permits
an employer to obtain or use for employment purposes information contained in the
credit history of an applicant or employee under circumstances described at 659A.320(2).
ORS 659A.320(2)(d) permits an employer to obtain or use information contained in
the credit history of an applicant or employee if the credit history information
is substantially job-related, and the employer’s reasons for the use of such
information are disclosed to the employee or prospective employee in writing.
(4) The burden of proving
the employer’s disclosure to the employee of its reasons for the use of such
information rests with the employer.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.320
Hist.: BLI 16-2010, f. 6-1-10,
cert. ef. 7-1-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0075
Exceptions to Application of Prohibition
on Obtainment or Use of Credit History
ORS 659A.320 does not apply to:
(1) Employers that are federally
insured banks or credit unions;
(2) Employers that are required
by state or federal law to use individual credit history for employment purposes;
(3) Employees in or applicants
for positions responsible for enforcing the criminal laws of this state, including:
(a) A public safety officer
who is a member of a law enforcement unit;
(b) A peace officer commissioned
by a city, port, school district, mass transit district, county, Indian reservation,
or the Criminal Justice Division of the Department of Justice, the Oregon State
Lottery Commission, the Governor; or
(c) Employees in positions
responsible for enforcing the criminal laws of this state or laws or ordinances
related to airport security; or
(4)(a) The obtainment or
use by an employer of information in the credit history of an applicant or employee
because the information is substantially job-related, and the employer’s reasons
for the use of such information are disclosed to the employee or prospective employee
in writing.
(b) The burden of proving
the employer’s disclosure to the employee rests with the employer.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.320
Hist.: BLI 14-2011, f. 12-30-11,
cert. ef. 1-1-12; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 14-2013, f. & cert.
ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0080
Determining whether Credit History
Is Substantially Job-Related
(1) The determination of whether credit
history information is substantially job-related must be evaluated with respect
to the position for which the individual is being considered or holds.
(2) Credit history information
of an applicant or employee is substantially job-related if:
(a) An essential function
of the position at issue requires access to financial information not customarily
provided in a retail transaction that is not a loan or extension of credit. Financial
information customarily provided in a retail transaction includes information related
to the exchange of cash, checks and credit or debit card numbers; or
(b) The position at issue
is one for which an employer is required to obtain credit history as a condition
of obtaining insurance or a surety or fidelity bond.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.320
Hist.: BLI 16-2010, f. 6-1-10,
cert. ef. 7-1-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0085
Enforcement and Retaliation Regarding
Unlawful Obtainment or Use of Credit History
(1) An employer's duties and obligations
under ORS 659A.320 extend to an employer that is a successor in interest as defined
in OAR 839-005-0014.
(2) An applicant or employee
claiming a violation of ORS 659A.320 or these rules may file a complaint with the
Civil Rights Division of the Bureau of Labor and Industries in the manner provided
by 659A.820.
(3) An applicant or employee
claiming a violation of ORS 659A.320 may bring a civil action under 659A.885.
(4) Pursuant to ORS 659A.030(1)(f),
it is an unlawful employment practice for an employer to discharge, expel or otherwise
discriminate against any person because the person has filed a complaint, testified
or assisted in any proceeding in connection with 659A.320.
(5) Pursuant to ORS 659A.030(1)(g),
it is an unlawful employment practice for any person, whether an employer or an
employee, to aid, abet, incite, compel or coerce the doing of any of the acts in
violation of 659A.320 or to attempt to do so.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.320
Hist.: BLI 16-2010, f. 6-1-10,
cert. ef. 7-1-10; BLI 14-2013, f. & cert. ef. 12-30-13; BLI 11-2015, f. &
cert. ef. 8-4-15
Discrimination Based on Protected Activity
839-005-0125
Discrimination in Retaliation for
Opposing Unlawful Practices
(1) This rule interprets ORS 659A.030(1)(f).
(2) A person will be found
to have unlawfully retaliated against any other person if:
(a) That other person has
engaged in protected activity by:
(A) Explicitly or implicitly
opposing an unlawful practice or what that other person reasonably believed to be
an unlawful practice, or
(B) Filing a charge, testifying,
or assisting in an investigation, proceeding, or lawsuit under ORS Chapter 659A,
or attempting to do so;
(b) The person has subjected
that other person to any adverse treatment, in or out of the workplace, that is
reasonably likely to deter protected activity, regardless of whether it materially
affects the terms, conditions, or privileges of employment; and
(c) There is a causal connection
between the protected activity and the adverse treatment.
(3) “Person”
for purposes ORS Chapter 659A and these rules is defined at 659A.001(9) and OAR
839-005-0003(12).
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.001(9)
& 659A.030(1)(f)
Hist.: BLI 27-2008, f. 8-5-08,
cert. ef. 8-6-08; Renumbered from 839-005-0033, BLI 14-2011, f. 12-30-11, cert.
ef. 1-1-12; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 14-2015, f. & cert. ef.
11-6-15
839-005-0130
Discrimination Against Employees Serving
or Scheduled to Serve as Jurors
(1) An employer commits an unlawful employment
practice under ORS chapter 659A if the employer discharges, threatens to discharge,
intimidates or coerces any employee by reason of the employee’s service or
scheduled service as a juror on a grand jury, trial jury or jury of inquest.
(2) An employee who alleges
a violation of subsection (1) of this rule may bring a civil action under ORS 659A.885
or may file a complaint with the Commissioner of the Bureau of Labor and Industries
in the manner provided by ORS 659A.820.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 10.090
Hist.: BLI 14-2011, f. 12-30-11,
cert. ef. 1-1-12; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 11-2015, f. & cert.
ef. 8-4-15
839-005-0135
Insurance Coverage for Employees
Serving as Jurors
(1) An employer who employs 10 or more
persons commits an unlawful employment practice under ORS chapter 659A if:
(a) The employer ceases to
provide health, disability, life or other insurance coverage for an employee during
times when the employee serves or is scheduled to serve as a juror; and
(b) The employee elected
to have coverage continued while the employee served or was scheduled to serve as
a juror, and the employee provided notice of that election to the employer in compliance
with the employer’s policy for notification.
(2) Notwithstanding ORS 652.610(3),
if, following an election described in subsection (1) of this section, an employer
is required or elects to pay any part of the costs of providing health, disability,
life or other insurance coverage for the employee that should have been paid by
the employee, the employer may deduct from the employee’s pay such amounts
upon the employee’s return to work until the amount the employer advanced
toward the payments is paid. The total amount deducted for insurance under this
subsection may not exceed 10 percent of the employee’s gross pay each pay
period.
(3) Notwithstanding ORS 652.610(3),
if the employer pays any part of the costs of providing health, disability, life
or other insurance coverage for an employee under subsection (2) of this section,
and the employee ceases to work for the employer before the total amount the employer
advanced toward the payments is paid, the employer may deduct the remaining amounts
from any amounts owed by the employer to the employee or may seek to recover those
amounts by any other legal means.
(4) An employee who alleges
a violation of this section may bring a civil action under ORS 659A.885 or may file
a complaint with the Commissioner of the Bureau of Labor and Industries in the manner
provided by ORS 659A.820.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 10.090
Hist.: BLI 14-2011, f. 12-30-11,
cert. ef. 1-1-12; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 11-2015, f. & cert.
ef. 8-4-15
839-005-0138
Discrimination in Employment Based
on Child Support Obligations
(1) For purposes of this rule:
(a) “Child” has
the meaning given that term in ORS 110.303.
(b) “Child support”
means an obligation imposed or imposable by law to provide support, including but
not limited to medical support and an unsatisfied obligation to provide support
to a child under ORS chapter 25.
(c) “Obligor”
means an individual or the estate of a decedent:
(A) Who owes or is alleged
to owe a duty of support;
(B) Who is alleged but has
not been adjudicated to be a parent of a child; or
(C) Who is liable under a
support order.
(d) “Order to withhold”
means an order or other legal process that requires a withholder to withhold support
from the income of an obligor.
(e) “Withholder”
means any person who disburses income and includes but is not limited to an employer,
conservator, trustee or insurer of the obligor.
(2) It is an unlawful employment
practice for an employer to discharge, refuse to hire or in any other manner discriminate,
retaliate, or take disciplinary action against an employee because of the entry
or service of an order to withhold under ORS 25.378 and 25.402 or because of the
obligations or additional obligations that the order imposes upon the employer.
(3) An obligor may bring
an action under ORS 659A.885 or may file a complaint with the Bureau of Labor and
Industries in the manner provided by ORS 659A.820.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 25.424,
659A.885
Hist.: BLI 9-2010, f. &
cert. ef. 2-24-10; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0140
Accommodation of Employee Religious
Practices
(1) An employer violates ORS 659A.030
if the employer does not allow an employee to use vacation leave, or other leave
available to the employee, for the purpose of allowing an employee to engage in
the religious observance or practices of the employee.
(a) This requirement applies
only to leave that is not restricted as to the manner in which the leave may be
used and that the employer allows the employee to take by adjusting or altering
the work schedule or assignment of the employee.
(2) An employer is required
to accommodate such leave only when reasonably accommodating use of the leave by
the employee will not impose an undue hardship on the operation of the business
of the employer.
(a) A reasonable accommodation
imposes an undue hardship on the operation of the business of the employer for the
purposes of this section if the accommodation requires significant difficulty or
expense. For the purpose of determining whether an accommodation requires significant
difficulty or expense, the following factors shall be considered:
(A) The nature and the cost
of the accommodation needed.
(B) The overall financial
resources of the facility or facilities involved in the provision of the accommodation,
the number of persons employed at the facility and the effect on expenses and resources
or other impacts on the operation of the facility caused by the accommodation.
(C) The overall financial
resources of the employer, the overall size of the business of the employer with
respect to the number of persons employed by the employer and the number, type and
location of the employer’s facilities.
(D) The type of business
operations conducted by the employer, including the composition, structure and functions
of the workforce of the employer and the geographic separateness and administrative
or fiscal relationship of the facility or facilities of the employer.
(E) The safety and health
requirements in a facility, including requirements for the safety of other employees
and any other person whose safety may be adversely impacted by the requested accommodation.
(3) An employer violates
ORS 659A.030 if the employer imposes an occupational requirement that restricts
the ability of an employee to wear religious clothing, to take time off for a holy
day or to take time off to participate in a religious observance or practice when:
(a) Reasonably accommodating
those activities does not impose an undue hardship on the operation of the business
of the employer as described in this rule; and
(b) The activities have only
a temporary or tangential impact on the employee’s ability to perform the
essential functions of the job.
(4) “Undue hardship”
for purposes of ORS 659A.033 and this rule is described in ORS 659A.033.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.033
Hist.: BLI 9-2010, f. &
cert. ef. 2-24-10; BLI 11-2015, f. & cert. ef. 8-4-15
Protections for Victims of Domestic
Violence, Harassment, Sexual Assault or Stalking
839-005-0160
Unlawful Employment Practices Against
Victims of Domestic Violence, Harassment, Sexual Assault or Stalking
(1) ORS 659A.290 provides that it is
an unlawful practice for an employer, because an individual is a victim of domestic
violence, harassment, sexual assault or stalking to:
(a) Refuse to hire an otherwise
qualified individual;
(b) Discharge, threaten to
discharge, demote, suspend or in any way discriminate or retaliate against an individual
with respect to promotion, compensation or any other terms, conditions or privileges
of employment; or to
(c) Refuse to make a reasonable
safety accommodation requested by an individual who is a victim of domestic violence,
harassment, sexual assault or stalking, unless the employer can demonstrate that
the accommodation would impose an undue hardship on the operation of the business
of the employer as determined by ORS 659A.121.
(2) The Civil Rights Division
of the Bureau of Labor and Industries enforces ORS 659A.290 and OAR 839-005-0160
to 839-005-0170, which implement ORS 659A.290.
(3) "Victim of domestic violence"
means an individual who has been threatened with abuse or who is a victim of abuse
as defined in ORS 107.705.
(4) “Victim of harassment”
means an individual against whom harassment has been committed as described in Oregon’s
criminal code at ORS 166.065.
(5) "Victim of sexual assault"
means an individual against whom a sexual offense has been threatened or committed
as described in ORS 163.305 to 163.467 or 163.525.
(6) "Victim of stalking"
means:
(a) An individual against
whom stalking has been threatened or committed as described in ORS 163.732; or
(b) An individual who has
obtained a temporary or permanent court’s stalking protective order under
ORS 30.866.
(7) In no event will an alleged
perpetrator of domestic violence, harassment, sexual assault or stalking be considered
a victim for the purposes of ORS 659A.290 or rules implementing ORS 659A.290.
Stat. Auth.: ORS 659A.805 & 659A.270
Stats. Implemented: ORS 659A.290
Hist.: BLI 9-2010, f. &
cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 3-2012, f. &
cert. ef. 2-8-12; BLI 14-2013, f. & cert. ef. 12-30-13; BLI 11-2015, f. &
cert. ef. 8-4-15
839-005-0170
Reasonable Safety Accommodation;
Certification; Records Confidential
(1) A “reasonable safety accommodation”
for a victim of domestic violence, harassment, sexual assault or stalking as provided
in ORS 659A.290 may include, but is not limited to, a transfer, reassignment, modified
schedule, use of available paid leave from employment, unpaid leave from employment,
changed work telephone number, changed work station, installed lock, implemented
safety procedure or any other adjustment to a job structure, workplace facility
or work requirement in response to actual or threatened domestic violence, harassment,
sexual assault or stalking.
(2) Use of available paid
and unpaid leave from employment is provided for in ORS 659A.270-.285 and OAR 839-009-0325
through 839-009-0365.
(3) “Undue hardship”
for purposes of ORS 659A.290 is defined at ORS 659A.121: An accommodation imposes
an undue hardship on the operation of the business of the employer if the accommodation
requires significant difficulty or expense, considering the following:
(a) The nature and the cost
of the accommodation needed.
(b) The overall financial
resources of the facility or facilities involved in the provision of the accommodation,
the number of persons employed at the facility and the effect on expenses and resources
or other impacts on the operation of the facility caused by the accommodation.
(c) The overall financial
resources of the employer, the overall size of the business of the employer with
respect to the number of its employees and the number, type and location of the
employer’s facilities.
(d) The type of operations
conducted by the employer, including the composition, structure and functions of
the workforce of the employer and the geographic separateness and administrative
or fiscal relationship of the facility or facilities in question to the employer.
(4) Prior to making a reasonable
safety accommodation, an employer may require an individual to provide certification
that the individual is a victim of domestic violence, harassment, sexual assault,
or stalking within a reasonable time after receiving the employer’s request.
Any of the following constitutes sufficient certification:
(a) A copy of a police report
indicating that the individual was or is a victim of domestic violence, harassment,
sexual assault or stalking as defined in OAR 839-005-0160 and ORS 659A.290; or
(b) A copy of a protective
order authorized by ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040
or 163.730 to 163.750; or any other order that restrains an individual from contact
with an individual; an order authorized by ORS 30.866, 107.095(1)(c), 107.700 to
107.735, 124.005 to 124.040 or 163.730 to 163.750) or other evidence from a court
or attorney that the employee appeared in or is preparing for a civil, criminal
or administrative proceeding related to domestic violence, harassment, sexual assault
or stalking; or
(c) Documentation from an
attorney; law enforcement officer (defined as all police, corrections, and parole
and probation officers who are included in the Public Safety Standards and Training
Act as described in ORS 181.610 and 181.651); health care professional (defined
as a physician or other health care practitioner who is licensed, certified or otherwise
authorized by law to provide health care services); licensed mental health professional
or counselor; member of the clergy; or victim services provider (defined at ORS
659A.270(8) as a prosecutor-based victim assistance program or a nonprofit program
offering safety planning, counseling, support or advocacy) that the individual was
or is undergoing treatment or counseling, obtaining services or relocating as a
result of domestic violence, harassment, sexual assault or stalking.
(5) All records and information
kept by an employer regarding a reasonable safety accommodation made for an individual
are confidential and may not be released without the express permission of the individual,
unless otherwise required by law.
(6) Consistent with ORS 659A.306,
the employer must pay the cost of any medical verification related to ORS 659A.290
or these rules that is not covered by insurance or other benefit plan.
(7) If the State of Oregon
has knowledge, or reasonably should have knowledge, that its employee is a victim
of domestic violence, harassment, sexual assault or stalking and that any direct
or indirect communication to the employee related to the victimization of the employee
is made or attempted to be made in the workplace, the State of Oregon shall immediately
inform the employee and offer to report the communication to law enforcement.
(8) The State of Oregon shall
annually inform all of its employees of the provisions of ORS 659A.290.
(9) Pursuant to ORS 659A.030(1)(g),
it is an unlawful employment practice for any person, whether an employer or an
employee, to aid, abet, incite, compel or coerce the doing of any of the acts in
violation of ORS 659A.290 or to attempt to do so.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.290
Hist.: BLI 9-2010, f. &
cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 3-2012, f. &
cert. ef. 2-8-12; BLI 14-2013, f. & cert. ef. 12-30-13; BLI 11-2015, f. &
cert. ef. 8-4-15
Housing Discrimination
839-005-0195
Purpose and Scope
(1) The public policy of the State of
Oregon guarantees all individuals the fullest possible participation in the social
and economic life of the state, including the right to purchase, lease, rent or
occupy property without discrimination on the basis of race, color, religion, sex,
sexual orientation, national origin, marital status, disability, familial status,
source of income and other classes protected under Oregon statutes. The Bureau of
Labor and Industries, through the Civil Rights Division, protects these rights by
enforcement of ORS 659A.145, 659A.421 and the federal Fair Housing Act (42 U.S.C.
§3601–3617) over which the U.S. Department of Housing and Urban Development
has jurisdiction.
(2) An individual claiming
to be aggrieved by an alleged unlawful practice under ORS 659A.145 or 659A.421 or
discrimination under the federal Fair Housing Act (42 U.S.C. §3601–3617)
may file a complaint with the Civil Rights Division as described in OAR 839-003-0200.
(a) An individual claiming
to be aggrieved by an alleged unlawful practice under ORS 659A.145 or 659A.421 or
discrimination under the federal Fair Housing Act (42 U.S.C. §3601–3617)
includes an individual who believes that the individual has been injured by an unlawful
practice or discriminatory housing practice or will be injured by an unlawful practice
or discriminatory housing practice that is about to occur.
(3) These rules apply to
all complaints and inquiries relating to these sections received on or after the
effective date of these rules.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103,
659A.142 & 659A.145, 659A.421; 42 U.S.C. §3601–3617
Hist.: BLI 36-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08;
Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08
thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert.
ef. 2-24-10; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0200
Definitions: Housing Discrimination
(1) “Aggrieved person” includes
a person who believes that the person:
(a) Has been injured by an
unlawful practice or discriminatory housing practice; or
(b) Will be injured by an
unlawful practice or discriminatory housing practice that is about to occur.
(2) “Disability”
means:
(a) A physical or mental
impairment that substantially limits one or more major life activities of the individual.
(b) A record of having a
physical or mental impairment that substantially limits one or more major life activities
of the individual. An individual has a record of having a physical or mental impairment
if the individual has a history of, or has been misclassified as having, a physical
or mental impairment that substantially limits one or more major life activities
of the individual.
(c) A physical or mental
impairment that the individual is regarded as having.
(A) An individual is regarded
as having a physical or mental impairment if the individual has been subjected to
an action prohibited under ORS 659A.112 to 659A.139 because of an actual or perceived
physical or mental impairment, whether or not the impairment limits or is perceived
to limit a major life activity of the individual.
(B) An individual is not
regarded as having a physical or mental impairment if the individual has an impairment
that is minor and that has an actual or expected duration of six months or less.
(3) "Dwelling" means any
building, structure, or portion of a building or structure that is occupied as,
or designed or intended for occupancy as, a residence by one or more families, and
any vacant land that is offered for sale or lease for the construction or location
of any such building, structure, or portion of such a building or structure.
(4) "Family" includes but
is not limited to a single individual.
(5) "Familial status" means
the relationship between one or more individuals who have not attained 18 years
of age and the individual with whom they are domiciled who is:
(a) A parent or another person
having legal custody of the individual; or
(b) The designee of the parent
or other person having such custody, with the written permission of the parent or
other person.
(c) "Familial status" includes
any individual, regardless of age or domicile, who is pregnant or is in the process
of securing legal custody of an individual who has not attained 18 years of age.
(d) “Domiciled”
includes but is not limited to part-time residence in a dwelling where an individual
has a reasonable expectation of a continuing right to return.
(6) "Major life activity"
includes, but is not limited to:
(a) Caring for oneself;
(b) Performing manual tasks;
(c) Seeing;
(d) Hearing;
(e) Eating;
(f) Drinking;
(g) Sleeping;
(h) Walking;
(i) Standing;
(j) Lifting;
(k) Bending;
(l) Twisting;
(m) Speaking;
(n) Breathing;
(o) Cognitive functioning;
(p) Learning;
(q) Education;
(r) Reading;
(s) Concentrating;
(t) Remembering;
(u) Thinking;
(v) Communicating;
(w) Working: To be substantially
limited in the major life activity of working, an individual must be significantly
restricted in the ability to perform a class of jobs or a broad range of jobs in
various classes as compared to the ability of an average person with comparable
skill, experience, education or other job-related requirements needed to perform
those same positions;
(x) Socialization;
(y) Sitting;
(z) Reaching;
(aa) Interacting with others;
(bb) Sexual relations;
(cc) Employment;
(dd) Ambulation;
(ee) Transportation;
(ff) Operation of a major
bodily function, including but not limited to:
(A) Functions of the immune
system;
(B) Normal cell growth; and
(C) Digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine and reproductive functions;
and
(gg) Ability to acquire,
rent or maintain property.
(8) "Misclassified," as used
in ORS 659A.100(2)(b), means an erroneous or unsupported medical diagnosis, report,
certificate or evaluation.
(9 ) "Person" includes one
or more individuals, partnerships, associations, labor organizations, limited liability
companies, joint stock companies, corporations, legal representatives, trustees,
trustees in bankruptcy or receivers, fiduciaries, mutual companies, trusts and unincorporated
organizations and public bodies as defined in ORS 30.260 that have the primary purpose
of serving, representing or otherwise benefiting the protected class.
(10) "Physical or mental
impairment" means any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine;
or any mental or psychological disorder, such as mental retardation, organic brain
syndrome, traumatic brain injury, emotional or mental illness, and specific learning
disabilities.
(11) "Property" and "real
property" means property used or intended for commercial, business or residential
purposes including, but not limited to a dwelling.
(12) "Purchaser" includes
an occupant, prospective occupant, renter, prospective renter, lessee, prospective
lessee, buyer or prospective buyer.
(13) "Receipt or alleged
receipt of treatment for a mental disorder," as used in ORS 659A.142(5), means actual
treatment of an individual for a mental condition or an assertion that the person
received such treatment.
(14) "Regarded as having
an impairment," as used in ORS 659A.100(2)(c), means:
(a) An individual having
a physical or mental impairment that does not substantially limit a major life activity
but who has been treated as having an impairment by a seller, lessor, advertiser,
real estate broker or salesperson, or the agent of any seller, lessor, advertiser,
real estate broker or salesperson;
(b) An individual having
a physical or mental impairment that substantially limits a major life activity
only as a result of the attitude of others toward such impairment; or
(c) An individual having
no physical or mental impairment but who is treated as having an impairment by a
seller, lessor, advertiser, real estate broker or salesperson, or the agent of any
seller, lessor, advertiser, real estate broker or salesperson.
(15) "Residential real estate
related transaction" means any of the following:
(a) The making or purchasing
of loans or providing other financial assistance:
(A) For purchasing, constructing,
improving, repairing or maintaining a dwelling; or
(B) Secured by residential
real estate; or
(b) The selling, brokering
or appraising of residential real property.
(16) "Substantially limits"
means that an individual has an impairment, had an impairment or is perceived as
having an impairment that restricts one or more major life activities of the individual
as compared to most people in the general population.
(a) An impairment need not
prevent, or significantly or severely restrict, the individual from performing a
major life activity in order to be considered substantially limiting.
(b) An impairment that substantially
limits one major life activity of the individual need not limit other major life
activities of the individual.
(c) To have a disability
(or to have a record of a disability) an individual must be substantially limited
in performing a major life activity as compared to most people in the general population.
(d) An impairment that is
episodic or in remission is considered to substantially limit a major life activity
of the individual if the impairment would substantially limit a major life activity
of the individual when the impairment is active Nonetheless, not every impairment
will constitute a disability within the meaning of this section.
(e) The term “substantially
limits” shall be construed in favor of broad coverage of individuals to the
maximum extent permitted by the terms of ORS 659A.100 to 659A.145 and 659A.400 to
659A.425, and should not require extensive analysis.
(17) "To rent" includes to
lease, to sublease, to let and otherwise to grant for a consideration the right
to occupy premises not owned by the occupant.
(18) "Treatment" includes
examination, evaluation, diagnosis and therapy by a health professional within the
scope of the professional's applicable license.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103-.142;
659A.145, 659A.421
Hist.: BLI 36-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08;
Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08
thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert.
ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0205
Prohibited Discrimination in Real
Property Transactions
(1) A person may not, because of race,
color, religion, sex, sexual orientation, national origin, marital status, disability,
familial status, source of income or other protected class of any individual:
(a) Refuse to sell, lease
or rent any real property to a purchaser except that a person may refuse to lease
or rent real property to a prospective renter or prospective lessee:
(A) Based upon the past conduct
of a prospective renter or prospective lessee provided the refusal to lease or rent
based on past conduct is consistent with local, state and federal law, including
but not limited to fair housing laws; or
(B) Based upon the prospective
renter's or prospective lessee's inability to pay rent, taking into account the
value of the prospective renter's or prospective lessee's local, state and federal
housing assistance, provided the refusal to lease or rent based on inability to
pay rent is consistent with local, state and federal law, including but not limited
to fair housing laws.
(b) Expel a purchaser from
any real property;
(c) Make any distinction,
discrimination or restriction against a purchaser in price, terms, conditions or
privileges relating to the sale, rental, lease or occupancy of real property or
in the furnishing of any facilities or services in connection with real property;
(d) Attempt to discourage
the sale, rental, lease or occupancy of any real property to a purchaser;
(e) Publish, circulate, issue
or display or cause to be published, circulated, issued or displayed, any communication,
notice, advertisement, or sign of any kind whether oral, written or electronic,
relating to the sale, rental or leasing of real property that indicates any preference,
limitation, specification or unlawful discrimination based on race, color, religion,
sex, sexual orientation, national origin, marital status, disability, familial status,
source of income and other classes protected under Oregon statutes;
(f) Assist, induce, incite
or coerce another person to commit an act or engage in a practice that violates
ORS 659A.145, 659A.421, the federal Fair Housing Act (42 U.S.C. §3601–3617)
or these rules;
(g) Coerce, intimidate, threaten
or interfere with any individual in the exercise or enjoyment of, or on account
of having exercised or enjoyed, or on account of having aided or encouraged any
other individual in the exercise or enjoyment of, any right granted or protected
by ORS 659A.145, 659A.421, the federal Fair Housing Act (42 U.S.C. §3601–3617)
or these rules;
(h) Deny access to, or membership
or participation in, any multiple listing service, real estate broker’s organization
or other service, organization or facility relating to the business of selling or
renting dwellings, or discriminate against any individual in the terms or conditions
of the access, membership or participation;
(i) Represent to an individual
that a dwelling is not available for inspection, sale, rental or lease when the
dwelling in fact is available for inspection, sale, rental or lease;
(j) Otherwise make unavailable
or deny a dwelling to an individual.
(2) A person whose business
includes engaging in residential real estate related transactions may not discriminate
against any individual in making a transaction available, or in the terms or conditions
of the transaction, because of race, color, religion, sex, sexual orientation, national
origin, marital status, disability, familial status, source of income and other
classes protected under Oregon statutes.
(3) A real estate licensee
may not accept or retain a listing of real property for sale, lease or rental with
an understanding that a purchaser may be discriminated against with respect to the
sale, rental or lease thereof because of race, color, religion, sex, sexual orientation,
national origin, marital status, disability, familial status, source of income and
other classes protected under Oregon statutes.
(4) A person may not, for
profit, induce or attempt to induce any other person to sell or rent any dwelling
by representations regarding the entry or prospective entry into the neighborhood
of an individual or individuals of a particular race, color, religion, sex, sexual
orientation, national origin, marital status, disability, familial status, source
of income and other classes protected under Oregon statutes.
(5) For purposes of OAR 839-005-0205(1)
to (4), “source of income” includes federal rent subsidy payments under
42 U.S.C. §1437f, and any other local, state, or federal housing assistance.
“Source of income” does not include income from specific occupations
or income derived in an illegal manner.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103,
659A.142 & 659A.145, 659A.421; 42 U.S.C. §3601–3617
Hist.: BLI 36-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08;
Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08
thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert.
ef. 2-24-10; BLI 9-2014, f. & cert. ef. 7-3-14; BLI 11-2015, f. & cert.
ef. 8-4-15
839-005-0206
Discrimination Theories: Housing
(1) For the purposes of housing discrimination
complaints under ORS 659A.145 or 659A.421 or discrimination complaints under the
federal Fair Housing Act (42 U.S.C. §3601–3617) an aggrieved person need
not be a member of a protected class in order to file a complaint of housing discrimination.
(2) Substantial evidence
of intentional unlawful discrimination exists if the division's investigation reveals
reasonable cause for the commissioner to believe the facts concerning the alleged
discriminatory housing practice are sufficient to warrant the initiation of a civil
action in circuit court under one of the following theories:
(a) Specific Intent Theory:
The respondent knowingly and purposefully discriminates against an individual because
of that individual’s membership in a protected class.
(b) Different or Unequal
Treatment Theory: The respondent treats members of a protected class differently
than others who are not members of that protected class. When the respondent makes
this differentiation because of the individual’s protected class and not because
of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing
a case of different or unequal treatment:
(A) There must be substantial
evidence that the individual was harmed or was about to be harmed by the action
of the respondent under circumstances that make it appear that the respondent treated
the individual differently than comparably situated individuals who were not members
of the individual’s protected class. Substantial evidence of discrimination
exists if the division’s investigation reveals evidence that a reasonable
person would accept as sufficient to support that protected class membership was
a motivating factor for the respondent’s alleged unlawful action. If the respondent
fails to rebut this evidence with evidence of a legitimate non-discriminatory reason,
the division will conclude that substantial evidence of discrimination exists.
(i) Pretext: If the respondent
rebuts the evidence with evidence of a legitimate non-discriminatory reason, but
there is substantial evidence that the respondent’s reason is a pretext for
discrimination, the division will conclude there is substantial evidence of unlawful
discrimination.
(ii) Mixed Motive: If the
respondent presents substantial evidence that a legitimate, non-discriminatory reason
contributed to the respondent’s action, but the division finds the individual’s
protected class membership was also a substantial factor in the respondent’s
action, the division will determine there is substantial evidence of unlawful discrimination.
(B) The aggrieved person
at all times has the burden of proving that the individual’s protected class
was the motivating factor for the respondent’s unlawful action.
(3) Adverse Impact Discrimination
in Housing:
(a) For the purposes of interpreting
ORS 90.390, a court or the commissioner may find that a person has violated or is
going to violate 659A.145 or 659A.421 if:
(A) The person applies a
facially neutral housing policy to a member of a protected class;
(B) Application of the policy
adversely impacts members of the protected class to a greater extent than the policy
impacts persons generally.
(b) In determining under
subsection (a) of this section whether a violation has occurred or will occur and,
if it is determined that a violation has occurred or will occur, what relief should
be granted, a court or the commissioner will consider:
(A) The significance of the
adverse impact on the protected class;
(B) The importance and necessity
of any business purpose for the facially neutral housing policy; and
(C) The availability of less
discriminatory alternatives for achieving the business purpose for the facially
neutral housing policy.
(4) As used in enforcing
ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. §3601–3617),
harassment on the basis of a protected class is an unlawful practice in housing
when:
(a) Conduct of a verbal or
physical nature relating to protected classes is unlawful when substantial evidence
of the elements of intentional discrimination, as described in section (2) of this
rule is shown; and
(A) Such conduct is sufficiently
severe or pervasive to have the purpose or effect of creating an intimidating, hostile,
or offensive environment; or
(B) Submission to such conduct
is made either explicitly or implicitly a term or condition of housing; or
(C) Submission to or rejection
of such conduct is used as the basis for housing decisions affecting that individual.
(b) The standard for determining
whether harassment is sufficiently severe or pervasive to create a hostile, intimidating
or offensive environment is whether a reasonable person in the circumstances of
the individual against whom the harassment is directed would so perceive it.
(5) Tenant-on-tenant harassment:
A housing provider is liable for a resident’s harassment of another resident
when the housing provider knew or should have known of the conduct, unless the housing
provider took immediate and appropriate corrective action.
(6) Harassment by Employees
or Agents: A housing provider is liable for harassment of a resident by the housing
provider’s employees or agents when the housing provider knew or should have
known of the conduct, unless the housing provider took immediate and appropriate
corrective action.
(7) Discrimination based
on disability may involve intentional discrimination, including harassment, or discrimination
that need not be intentional, including adverse impact, or the failure to permit
reasonable modifications, the refusal to make reasonable accommodations or the failure
to design and construct covered buildings under applicable rules. To be protected
from discrimination based on disability, an individual must have a disability, as
described in ORS 659A.104 and the relevant rules. Reasonable accommodation in real
property transactions is covered by 659A.145 and OAR 839-005-0220. Reasonable modifications
in housing and the design and construction of covered buildings are covered by ORS
659A.145. Claims of disability discrimination brought under federal housing law
are defined under that law.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103
- 659A.142; 659A.145, 659A.421
Hist.: BLI 8-2010, f. &
cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2013, f.
& cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0210
Exceptions to Application of Housing
Discrimination Statutes and Rules
(1) OAR 839-005-0205 does not apply
with respect to sex distinction, discrimination or restriction if the real property
involved is such that the application of OAR 839-005-0205 would necessarily result
in common use of bath or bedroom facilities by unrelated persons of opposite sex.
(2) The provisions of OAR
839-005-0205(1)(a) to (d) and (f) that prohibit actions based upon sex, sexual orientation
or familial status do not apply to the renting of space within a single-family residence
if the owner actually maintains and occupies the residence as the owner’s
primary residence and all occupants share some common space within the residence.
(3)(a) OAR 839-005-0205 does
not apply to familial status distinction, discrimination or restriction with respect
to housing for older persons.
(b) As used in this subsection,
“housing for older persons” means housing:
(A) Provided under any state
or federal program that is specifically designed and operated to assist elderly
persons, as defined by the state or federal program;
(B) Intended for, and solely
occupied by, persons 62 years of age or older; or
(C) Intended and operated
for occupancy by at least one person 55 years of age or older per unit. Housing
qualifies as housing for older persons under this subparagraph if:
(i) At least 80 percent of
the dwellings are occupied by at least one person 55 years of age or older per unit;
and
(ii) Policies and procedures
that demonstrate an intent by the owner or manager to provide housing for persons
55 years of age or older are published and adhered to.
(c) Housing does not fail
to meet the requirements for housing for older persons if:
(A) Persons residing in the
housing as of September 13, 1988, do not meet the requirements of paragraph (b)(B)
or (C) of this subsection. However, new occupants of such housing will meet the
age requirements of paragraph (b)(B) or (C) of this subsection; or
(B) The housing includes
unoccupied units that are reserved for occupancy by persons who meet the age requirements
of paragraph (b)(B) or (C) of this subsection.
(d) Nothing in this section
limits the applicability of any reasonable local, state or federal restrictions
regarding the maximum number of occupants permitted to occupy a dwelling.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103,
659A.142 & 659A.145, 659A.421, 42 U.S.C. §3601–3617
Hist.: BLI 36-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0215
Religious Exemption
It is not an unlawful practice for a
bona fide church or other religious institution to take any action with respect
to housing based on a bona fide religious belief about sexual orientation as long
as the housing is closely connected with or related to the primary purpose of the
church or institution and is not connected with a commercial or business activity
that has no necessary relationship to the church or institution (see OAR 839-005-0031).
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103,
659A.142 & 659A.145, 659A.421, 42 U.S.C. §3601–3617
Hist.: BLI 36-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 11-2015, f. &
cert. ef. 8-4-15
839-005-0220
Discrimination in Real Property
Transactions Against Individuals Based on Disabilities
(1) Individuals protected from discrimination
on the basis of disability in real property transactions include any individual
with a disability associated with a purchaser.
(2) In addition to the prohibitions
in OAR 839-005-0205, discrimination in real property transactions based on an individual’s
disability includes, but is not limited to:
(a) Failure to design and
construct a covered multifamily dwelling as required by the Fair Housing Act (42
U.S.C. 3601 et seq.);
(b) Refusing to permit, at
the expense of an individual with a disability, reasonable modifications of existing
premises occupied or to be occupied by that individual if such modifications may
be necessary to afford that individual full enjoyment of the premises, except that,
in the case of rental, the landlord may, where it is reasonable to do so, condition
permission for modification on the renter agreeing to restore the interior of the
premises to the condition that existed before the modification, reasonable wear
and tear excepted;
(A) In the case of a rental,
a disabled renter is only required to restore the interior premises to the condition
that existed before the modification when the landlord required restoration as a
condition to granting the disabled renter’s reasonable modification request.
(c) Refusing to make reasonable
accommodations in rules, policies, practices or services when such accommodations
may be necessary to afford an individual with a disability equal opportunity to
use and enjoy a dwelling;
(A) A housing provider may
not require verification of the disability-related need for a requested accommodation
if that need is readily apparent or otherwise known;
(B) If a disability or a
disability-related need for a requested accommodation is not readily apparent or
otherwise known, the provider may request only information that is necessary to
evaluate the disability-related need for the accommodation;
(C) It is a violation of
this section for a housing provider to refuse to permit a disabled person to live
in a covered dwelling with an animal that mitigates one or more of the person’s
disability-related needs, except when a specific animal poses a direct threat to
the health or safety of other individuals and the threat cannot be eliminated or
significantly reduced; and
(D) A housing provider may
not charge a resident or applicant deposits or other fees for keeping an animal
covered under this section.
(3) Direct Threat. A lessor
or agent may engage in conduct otherwise prohibited by ORS 659A.145 when:
(a) Leasing or rental of
the subject property by an individual with a disability would constitute a direct
threat to the health or safety of other individuals or would result in substantial
physical damage to the property of others; and
(b) No reasonable accommodation
is possible that would eliminate or acceptably minimize the risk to health and safety.
(4) A determination that
a direct threat exists must rely on an individualized assessment that is based on
reliable objective evidence (e.g., current conduct, or a recent history of overt
acts posing a risk to health and safety). The assessment must consider:
(a) The nature, duration
and severity of the risk of injury;
(b) The probability that
injury will actually occur; and
(c) Whether there are any
reasonable accommodations that will eliminate the direct threat.
(5) A lessor or agent must
allow alterations of existing premises if the premises are occupied by or to be
occupied by an individual with a disability, and the individual with a disability
pays for the alterations, as provided in section 2 of this rule.
(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.
(7) In the sale, lease or
rental of real estate, a person may not disclose to any person that an occupant
or owner of real property has or died from human immunodeficiency virus or acquired
immune deficiency syndrome.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103
– 659A.142; 659A.145 & 659A.421
Hist.: BLI 36-2007, f. 12-27-07
cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08;
Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08
thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert.
ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 11-2015, f. &
cert. ef. 8-4-15
Discrimination by Career Schools
839-005-0300
Purpose and Scope
(1) ORS 345.240 prohibits unlawful discrimination
by career schools licensed under ORS 345.010 to 345.450.
(2) A violation of ORS 345.240
is an unlawful practice under ORS chapter 659A. The provisions of ORS Chapter 659A
that apply to unlawful practices, apply to alleged violations of ORS 345.240, including
but not limited to ORS 659A.030(1)(f) and 659A.800 through 659A.865.
(3) Any individual claiming
to be aggrieved by an unlawful practice including a violation of ORS 345.240 may
file a complaint with the Commissioner of the Bureau of Labor and Industries under
ORS 659A.820.
(4) The Civil Rights Division
of the Bureau of Labor and Industries enforces ORS 345.240. These rules implement
and interpret ORS 345.240.
Stat. Auth.: ORS 651.060
Stats. Implemented: ORS 345.240
Hist.: BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0305
Definitions: Career Schools
For purposes of ORS 345.240 and these
rules:
(1) “Agent” means
an individual who:
(a) Is employed by or for
a career school, or is working on behalf of the school under a contract, for the
purpose of procuring students, enrollees or subscribers of the school by solicitation
in any form that is made at a place or places other than the school office or place
of business of the school; or
(b) At the request of a career
school or under a contract with a career school, provides information technology
services for the school and has control over information technology systems that
are used for the purpose of procuring students, enrollees or subscribers of the
school by solicitation in any form that is made by technology that is accessed at
a place or places other than the school office or place of business of the school.
(2) “Career school”
includes any private proprietary professional, technical, home study, correspondence,
business or other school instruction, organization or person that offers any instruction
or training for the purpose or purported purpose of instructing, training or preparing
persons for any profession. “Career school” includes those required
to be licensed under ORS 345.010 to 345.450, and excludes entities described in
ORS 345.015. Entities excluded by ORS 345.015 but receiving state funds, may be
subject to ORS 659.850, which is under the jurisdiction of the State Board of Higher
Education.
(3) "Discrimination" means
any act that unreasonably differentiates treatment, intended or unintended, or any
act that is fair in form but discriminatory in operation, either of which is based
on age, disability, national origin, race, color, marital status, religion, sex
or sexual orientation.
(4) “Sexual orientation”
means an individual’s actual or perceived heterosexuality, homosexuality,
bisexuality or gender identity, regardless of whether the individual’s gender
identity, appearance, expression or behavior differs from that traditionally associated
with the individual’s sex at birth.
Stat. Auth.: ORS 651.060
Stats. Implemented: ORS 345.240,
345.010 & 659.850
Hist.: BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0310
Unlawful Discrimination by Career
Schools or Agents
(1) No career school or its agent may,
based on the protected classes of age, disability, national origin, race, color,
marital status, religion, sex or sexual orientation of an individual or any other
individual with whom that individual associates:
(a) Refuse admission to any
individual;
(b) Discriminate in any aspect
of admission or enrollment against any individual;
(c) Discriminate in giving
instruction to any individual;
(d) Discriminate in requirements
for or the provision of aid, benefits, or services;
(e) Discriminate in application
of rules of behavior, sanctions, or any other treatment; or
(f) Otherwise limit any individual
in the enjoyment of any right, privilege, advantage, or opportunity.
(2) No career school may
aid or perpetuate discrimination by joining or remaining a member of any organization
that discriminates, based on the protected classes in subsection (1) of this rule,
in providing any aid, benefit, or service to students or employees.
Stat. Auth.: ORS 651.060
Stats. Implemented: ORS 345.240
& 659.850
Hist.: BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0315
Discrimination Theories for Career
Schools
(1) Intentional Unlawful Discrimination:
Substantial evidence of intentional unlawful discrimination exists if the division's
investigation reveals evidence that a reasonable person would accept as sufficient
to support the following elements:
(a) The respondent is a respondent
as defined by ORS 659A.001(10) and OAR 839-005-0003(12) of these rules;
(b) The aggrieved person
is a member of a protected class;
(c) The aggrieved person
was harmed by an action of the respondent; and
(d) The aggrieved person’s
protected class was the motivating factor for the respondent's action. In determining
whether the aggrieved person’s protected class was the reason for the respondent's
action, the division uses whichever of the following theories applies:
(A) Specific Intent Theory:
The respondent knowingly and purposefully discriminates against an individual because
of that individual's membership in a protected class, unless the respondent can
show that a bona fide voluntary, court-ordered affirmative action plan (OAR 839-005-0013(3))
allows the action.
(B) Different or Unequal
Treatment Theory: The respondent treats members of a protected class differently
than others who are not members of that protected class. When the respondent makes
this differentiation because of the individual's protected class and not because
of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing
a case of different or unequal treatment:
(i) There must be substantial
evidence that the aggrieved person was harmed by an action of the respondent under
circumstances that make it appear that the respondent treated the aggrieved person
differently than comparably situated individuals who were not members of the aggrieved
person’s protected class. Substantial evidence of discrimination exists if
the division's investigation reveals evidence that a reasonable person would accept
as sufficient to support that protected class membership was a motivating factor
for the respondent's alleged unlawful action. If the respondent fails to rebut this
evidence with evidence of a legitimate non-discriminatory reason, the division will
conclude that substantial evidence of unlawful discrimination exists.
(I) Pretext: If the respondent
rebuts the evidence with evidence of a legitimate non-discriminatory reason, but
there is substantial evidence that the respondent’s reason is a pretext for
discrimination, the division will conclude there is substantial evidence of unlawful
discrimination.
(II) Mixed Motive: If the
respondent presents substantial evidence that a legitimate, non-discriminatory reason
contributed to the respondent's action, but the division finds the individual's
protected class membership was also a substantial factor in the respondent's action,
the division will determine there is substantial evidence of discrimination.
(ii) The aggrieved person
at all times has the burden of proving that the aggrieved person’s protected
class was the reason for the respondent's unlawful action.
(2) Harassment based on an
individual's protected class is a type of intentional unlawful discrimination.
(a) Conduct of a verbal or
physical nature relating to protected classes other than sex is unlawful when substantial
evidence of the elements of intentional discrimination, as described in section
(1) of this rule, is shown and:
(A) Such conduct is sufficiently
severe or pervasive to have the purpose or effect of unreasonably interfering with
an individual's performance or creating an intimidating, hostile or offensive environment;
(B) Submission to such conduct
is made either explicitly or implicitly a term or condition of enrollment; or
(C) Submission to or rejection
of such conduct is used as the basis for enrollment decisions affecting that individual.
(b) The standard for determining
whether harassment is sufficiently severe or pervasive to create a hostile, intimidating
or offensive environment is whether a reasonable person in the circumstances of
the complaining individual would so perceive it.
(3) Adverse Impact Discrimination:
Substantial evidence of adverse impact discrimination does not require establishment
of intentional discrimination as provided in (1) of this rule. Adverse impact discrimination
exists if the division's investigation reveals evidence that a reasonable person
would accept as sufficient to support the following elements:
(a) The respondent is a respondent
as defined by ORS 659A.001(10) and OAR 839-005-0003(10) of these rules;
(b) The respondent has a
standard or policy that is applied equally.
(c) The standard or policy
has the effect of screening out or otherwise affecting members of a protected class
at a significantly higher rate than others who are not members of that protected
class; and
(d) The aggrieved person
is a member of the protected class adversely affected by the respondent's standard
or policy and has been harmed by the respondent's application of the standard or
policy.
(4) Reasonable Accommodation
of Religion: A career school must reasonably accommodate a student’s or applicant's
religious belief, observance or practice unless the career school can demonstrate
that such accommodation would cause it undue hardship.
Stat. Auth.: ORS 651.060
Stats. Implemented: ORS 345.240,
345.120 & 345.060
Hist.: BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0320
Authority of Superintendent of Public
Instruction Related to Complaints under ORS 345.240
(1) Pursuant to ORS 345.120, the Superintendent
of Public Instruction of the State of Oregon has authority to suspend or revoke
licenses of career schools violating ORS 345.010 to 345.450 or any applicable rule.
A certified copy of a finding by the Commissioner of the Bureau of Labor and Industries
in a contested case proceeding under ORS 659A.850 that the school has violated ORS
345.240 is adequate proof of the violation.
(2) Pursuant to ORS 345.060,
the Superintendent of Public Instruction may accept service of all actions or proceedings
brought against a career school not domiciled in Oregon.
Stat. Auth.: ORS 651.060
Stats. Implemented: ORS 345.240,
345.120 & 345.060
Hist.: BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
839-005-0325
Retaliation or Discrimination by
Career Schools Prohibited
Pursuant to ORS 659A.030(1)(f), it is
an unlawful practice for a career school or its agent to retaliate or discriminate
against any individual because the individual has filed a complaint, testified or
assisted in any proceeding in connection with ORS 345.240 or ORS chapter 659A.
Stat. Auth.: ORS 651.060
Stats. Implemented: ORS 345.240
& 659A.030
Hist.: BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
Employer Access to Employee or Applicant Social
Media Accounts
839-005-0400
Unlawful Employment Practice
(1) It is an unlawful employment practice
for an employer to:
(a) Require or request an
employee or an applicant for employment to disclose or to provide access through
the employee's or applicant's user name and password, password or other means of
authentication that provides access to a personal social media account;
(b) Compel an employee or
applicant for employment to add the employer or an employment agency to the employee's
or applicant's list of contacts associated with a social media website;
(c) Except as provided in
subsection (4)(b) of this section, compel an employee or applicant for employment
to access a personal social media account in the presence of the employer and in
a manner that enables the employer to view the contents of the personal social media
account that are visible only when the personal social media account is accessed
by the account holder's user name and password, password or other means of authentication;
(d) Take, or threaten to
take, any action to discharge, discipline or otherwise penalize an employee for
the employee's refusal to disclose, or to provide access through, the employee's
user name and password, password or other means of authentication that is associated
with a personal social media account, to add the employer to the employee's list
of contacts associated with a social media website or to access a personal social
media account as described in paragraph (c) of this subsection; or
(e) Fail or refuse to hire
an applicant for employment because the applicant refused to disclose, or to provide
access through, the applicant's user name and password, password or other means
of authentication that is associated with a personal social media account, to add
the employer to the applicant's list of contacts associated with a social media
website or to access a personal social media account as described in paragraph (c)
of this subsection.
(2) An employer may require
an employee to disclose any username and password, password or other means for accessing
an account provided by, or on behalf of, the employer or to be used on behalf of
the employer.
(3) An employer may not be
held liable for the failure to request or require an employee or applicant to disclose
the information specified in subsection (1)(a) of this section.
(4) Nothing in this section
prevents an employer from:
(a) Conducting an investigation,
without requiring an employee to provide a user name and password, password or other
means of authentication that provides access to a personal social media account
of the employee, for the purpose of ensuring compliance with applicable laws, regulatory
requirements or prohibitions against work-related employee misconduct based on receipt
by the employer of specific information about activity of the employee on a personal
online account or service.
(b) Conducting an investigation
permitted under this subsection that requires an employee, without providing a user
name and password, password or other means of authentication that provides access
to a personal social media account of the employee, to share content that has been
reported to the employer that is necessary for the employer to make a factual determination
about the matter.
(c) Complying with state
and federal laws, rules and regulations and the rules of self-regulatory organizations.
(5) Nothing in this section
prohibits an employer from accessing information available to the public about the
employee or applicant that is accessible through an online account.
(6) If an employer inadvertently
receives the user name and password, password or other means of authentication that
provides access to a personal social media account of an employee through the use
of an electronic device or program that monitors usage of the employer's network
or employer-provided devices, the employer is not liable for having the information
but may not use the information to access the personal social media account of the
employee.
(7) As used in this section,
“social media” means an electronic medium that allows users to create,
share and view user-generated content, including, but not limited to, uploading
or downloading videos, still photographs, blogs, video blogs, podcasts, instant
messages, electronic mail or Internet website profiles or locations.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.330
Hist.: BLI 14-2013, f. &
cert. ef. 12-30-13; BLI 11-2015, f. & cert. ef. 8-4-15
The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
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