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BUREAU OF LABOR AND INDUSTRIES

 

DIVISION 3
CIVIL RIGHTS COMPLAINT PROCEDURES

839-003-0000
Purpose and Scope
(1) The policy of the State of Oregon
guarantees all citizens of the state the right to employment, housing, access to
places of public accommodation and private vocational, professional or trade schools
without unlawful discrimination.
(2) These rules govern the
Civil Rights Division procedures for processing all complaints filed with the division.
(3) In any matter not governed
by these rules, the Commissioner of the Bureau of Labor and Industries will exercise
discretion under the law.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.003
& 659A.805

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 9-2015, f. & cert.
ef. 6-29-15
839-003-0005
Definitions
For purposes of these rules:
(1) "Administrator" means
the Administrator of the Civil Rights Division of the Bureau of Labor and Industries
or a designee of the administrator.
(2) “Aggrieved person”
means:
(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;
(b) A person who files a
complaint personally or through an attorney under ORS 659A.825; or
(c) A person on whose behalf
the commissioner files a complaint as provided in OAR 839-003-0100 or -0245.
(3) "Bureau" means the Bureau
of Labor and Industries.
(4) "Commissioner" means
the commissioner of the Bureau of Labor and Industries or a designee of the commissioner.
(5) "Complaint" means for
the purposes of ORS chapter 659A, (except complaints under the Oregon Safe Employment
Act (OSEA) in ORS chapter 654, housing discrimination complaints under ORS 659A.145,
659A.421 or the federal Fair Housing Act, or a commissioner’s complaint under
ORS 659A.825) a written, verified statement that:
(a) Gives the name and address
of the aggrieved person and the respondent;
(b) Identifies the protected
class basis of the complaint;
(c) Is signed by the aggrieved
person;
(d) Describes the actions
complained of, including:
(A) The date(s) of occurrence;
(B) What the action was and
how it harmed the aggrieved person; and
(C) The causal connection
between the aggrieved person’s protected class and the alleged harm.
(6) "Days," unless otherwise
stated in the text of a document, means calendar days.
(7) "Division" means the
Civil Rights Division of the Bureau of Labor and Industries.
(8) "EEOC" means the federal
Equal Employment Opportunity Commission.
(9) "Notice" means written
information delivered personally or sent by mail to the person's last known personal
or business address or business address of the person's designated representative.
(10) "OSEA" means the Oregon
Safe Employment Act, ORS 654.001 to 654.295, 654.412 to 654.423, 654.750 to 654.780
and 654.991.
(11) "Protected class" means
a group of people protected by law from discrimination on the basis of a shared
characteristic, or a perception of that characteristic, such as race, sex, age,
disability or other.
(12) "Person" has the meaning
given in ORS 659A.001 (9).
(13) "Respondent" includes
any person or other entity 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).
(14) "Formal charges" are
charges drafted and issued by the bureau's Administrative Prosecution Unit.
(15) "Substantial evidence"
means:
(a) Proof that a reasonable
person would accept as sufficient to support the allegations of the complaint, except
complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C.
3601 – 3614a),
(b) Under ORS 659A.145 or
659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a), reasonable
cause for the commissioner to believe the facts concerning the alleged discriminatory
housing practice are sufficient to warrant the initiation of an administrative action
or a civil action in circuit court.
(16) "Substantial evidence
determination" means the division's written findings of substantial evidence.
(17) "Written verified complaint"
means a complaint that is in writing or print; and under oath or affirmation by
the aggrieved person or the parent or legal guardian of an aggrieved person who
is an unemancipated minor.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 7-1982, f. & ef. 4-22-82; BL 4-1996, f. & cert. ef. 3-12-96;
BLI 11-2000, f. & cert. ef. 3-24-00; 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 6-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11;
BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12; BLI 7-2012, f. &
cert. ef. 8-8-12; BLI 8-2012(Temp), f. & cert. ef. 8-8-12 thru 1-31-13; BLI
11-2012, f. & cert. ef. 10-10-12; BLI 13-2013, f. & cert. ef. 12-30-13;
BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0010
Who May File
(1) This section does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). Complaints of housing discrimination must be
filed in accordance with OAR 839-003-0200.
(2) Any person claiming to
be aggrieved by an unlawful practice may file a complaint with the division personally
or through an attorney.
(3) Any employee, or a representative
authorized to do so by ORS 654.062(2), may file a complaint with the division alleging
discrimination by an employer against the employee for raising issues of employee
safety or health in the workplace.
(4) The commissioner of the
Bureau of Labor and Industries or attorney general of the State of Oregon may file
a complaint whenever there is reason to believe that a person has committed unlawful
practices.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.820
& 659A.825

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 7-1982, f. & ef. 4-22-82; BL 4-1996, f. & cert. ef. 3-12-96;
BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02;
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 9-2015, f. & cert. ef. 6-29-15
839-003-0015
Equal Employment Opportunity Commission
If an aggrieved person wants to file
a complaint alleging facts that would also violate federal discrimination statutes
administered by the federal Equal Employment Opportunity Commission (EEOC) and the
complaint meets federal filing requirements, the division may accept it on behalf
of EEOC and co-file the complaint with EEOC. Under a work-sharing agreement between
the division and EEOC the division, in most instances, will process the complaint
for both agencies.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.820,
42 USC Sec. 706(c) & (d) (Title VII of the Civil Rights Act of 1964, as amended),
42 USC Sec. 101-108 (Title I of the Americans with Disabilities Act) & 29 USC
Sec. 621-634 (The Age Discrimination in Employment Act of 1967)

Hist.: BL 7-1981, f. &
ef. 6-25-81; BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert.
ef. 5-17-02; BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0020
Civil Action
(1) Civil actions in state or federal
court alleging unlawful practices under 659A.145 or 659A.421 or the federal Fair
Housing Act (42 U.S.C. 3601 – 3614a are covered under OAR 839-003-0235 and
not under this rule.
(2) An aggrieved person alleging
unlawful practices may file a civil action in state or federal court as provided
in ORS 659A.870 to 659A.885.
(a) An aggrieved person is
not required to file a complaint of unlawful practices with the division before
filing a civil action alleging the unlawful practices.
(b) An aggrieved person filing
a civil action alleging unlawful practices waives the right to file a complaint
with the division with respect to those matters alleged in the civil action.
(3) After filing a complaint
with the division, an aggrieved person may file a civil action in state or federal
court alleging the same matters as those alleged in the complaint. The aggrieved
person should notify the division of the civil action. When the division receives
notice from the aggrieved person or aggrieved person’s attorney, or court
documents indicating that such a civil action has been filed, the division will
dismiss the complaint. The division will notify the aggrieved person and respondent
that the division has dismissed the complaint.
(4)The commissioner will
notify the aggrieved person in writing of the right to file a civil action as provided
in ORS 659A.870 to 659A.885, when a complaint is dismissed by the division or on
the one-year anniversary of the complaint filing, whichever occurs first. Except
as provided in section (5) of this rule, the aggrieved person has 90 days from the
notice mailing date to file a civil action.
(5) A civil action under
ORS 659A.885 alleging an unlawful practice in violation of ORS 659A.403 or 659A.406
(public accommodation) must be commenced within one year of the occurrence of the
unlawful practice, whether or not the aggrieved person first files a complaint with
the division.
(6) An aggrieved person filing
a complaint with the division alleging unlawful practices by a public body or any
officer, employee or agent of a public body, as defined in ORS 30.260, need not
file a tort claim notice with the public body. However, ORS 30.275 requires a tort
claim notice be sent by the aggrieved person to the public body within 180 days
of the alleged unlawful practice if: the aggrieved person files a civil action in
court instead of filing a complaint with the division; or a complaint is dismissed
by or withdrawn from the division, and the aggrieved person then files a civil action.
The division encourages aggrieved persons filing complaints against public bodies
to file a tort claim notice at the same time they file the complaint.
(7) A civil action or an
action for a writ of mandamus alleging breach of a settlement agreement to which
the division is a party may be filed as provided by ORS 659A.840 and 659A.860 in
the manner provided by ORS 659A.885(3). An aggrieved person may instead file a complaint
with the commissioner to seek enforcement of a settlement agreement to which the
division is a party, within one year after the act or omission alleged to be a violation
of the agreement. The commissioner will process the complaint in the same manner
as provided for a complaint filed under ORS 659A.820.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800-
659A.890

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 12-1982, f. & ef. 8-10-82; BL 4-1996, f. & cert. ef. 3-12-96;
BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02;
BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06; BLI 24-2006(Temp), f. 7-5-06, cert. ef.
7-7-06 thru 1-3-07; BLI 38-2006, f. 10-25-06, cert. ef. 10-27-06; 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 13-2013,
f. & cert. ef. 12-30-13; BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0025
Filing a Complaint
(1) Complaints under the Oregon Safe
Employment Act (OSEA), which includes ORS 654.001 to 654.295, 654.412 to 654.423,
654.750 to 654.780 and 654.991, must be filed in accordance with OAR 839-003-0031.
(2) Complaints under ORS
659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a)
must be filed in accordance with OAR 839-003-0200, or 839-003-0245 (Commissioner’s
Housing Complaint).
(3) Commissioner’s
complaints other than commissioner’s housing complaints must be filed in accordance
with OAR 839-003-0100.
(4) An aggrieved person or
the aggrieved person's attorney may file a complaint alleging unlawful practices,
in person or by mail, with the division at any bureau office in the state of Oregon.
The complaint must meet the standards provided in OAR 839-003-0005(4).
(5) The filing date is the
date the division receives a complaint that meets the standards provided in OAR
839-003-0005(4).
(6) A complaint must be filed
with the division no later than one year after the alleged unlawful practice occurred.
If the alleged unlawful practice is of a continuing nature, the right to file a
complaint exists so long as the person files the complaint within one year of the
most recent date the unlawful practice occurred.
(7) An aggrieved person alleging
constructive discharge from employment must file a discrimination complaint with
the division within one year of the date the discharge occurred.
(8) The procedures for filing
a complaint are as follows:
(a) An aggrieved person or
the aggrieved person's attorney makes an inquiry to the division;
(b) The division may provide
the aggrieved person or the aggrieved person's attorney with a letter of information
and/or questionnaire to assist in determining whether there is a basis for filing
a complaint;
(c) If the division determines
the aggrieved person has a basis for filing a complaint, the division will draft
a complaint based upon the information provided by the aggrieved person and send
or give the complaint to the aggrieved person or the aggrieved person's attorney
for review. The aggrieved person or the aggrieved person's attorney will request
any necessary changes to the complaint.
(d) The aggrieved person
will verify and sign the complaint. The complaint will then be submitted to the
division.
(e) If the aggrieved person
is an unemancipated minor the complaint must be signed by the minor and the parent
or legal guardian of the minor.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 654.062 &
659A

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef.
2-3-98; BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert. ef.
5-17-02; BLI 12-2004, f. 10-22-04 cert. ef. 10-25-04; BLI 19-2007(Temp), f. &
cert. ef. 7-18-07 thru 1-1-08; BLI 29-2007, f. 9-27-07 cert. ef. 10-1-07; 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 6-2010, f. & cert. ef. 2-24-10; BLI 8-2011,
f. 10-13-11, cert. ef. 10-14-11; BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru
12-10-12; BLI 7-2012, f. & cert. ef. 8-8-12; BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0031
Filing a Complaint under the Oregon
Safe Employment Act (OSEA)
(1) An aggrieved person or the aggrieved
person's attorney may file a complaint under the Oregon Safe Employment Act, ORS
654.001 to 654.295, 654.412 to 654.423, 654.750 to 654.780 and 654.991 (OSEA), in
person or by mail, with the division at any bureau office in the state of Oregon.
(2) “Complaint”
means a written statement signed by the aggrieved person that:
(a) Gives the name and address
of the aggrieved person and the respondent;
(b) Identifies the protected
class basis of the complaint;
(c) Is signed by the aggrieved
person;
(d) Describes the actions
complained of, including:
(A) The date(s) of occurrence;
(B) What the action was and
how it harmed the aggrieved person; and
(C) The causal connection
between the aggrieved person’s protected class and the alleged harm.
(3) A person alleging discrimination
or retaliation for reporting or opposing unsafe or unhealthy work conditions under
ORS 654.062 must contact the division within 90 days of having reasonable cause
to believe that such violation has occurred. An employee would have reasonable cause
to believe a violation has occurred on the earliest date that the employee:
(a) Believed retaliation
had occurred against the employee for opposing employee health and safety hazards;
and
(b) Knew or should have known
of the right to file a complaint with the division and of the requirement that the
complaint be filed within 90 days of the alleged retaliation.
(A) If a notice required
by OSEA, as provided in OAR 437-001-0275(2)(a), was properly posted in the employee's
workplace, continuously on and following the date of the alleged retaliation, the
division will find that the employee knew or should have known of the 90-day filing
requirement.
(B) If the employer failed
to post the required OSEA poster, the 90-day filing requirement will begin on the
date the employee learned of the right to file a complaint and of the 90-day filing
requirement. The employee may establish this date based on the employee's own statement
or other evidence offered by the employee.
(C) If the employer disagrees
with the employee's presented date as the date the employee learned of the right
to file a complaint, the burden is on the employer to show that the employee knew
or should have known on an earlier date.
(D) If extenuating circumstances
exist, the division may extend the 90-day period as provided in 29 CFR §1977.15
(3).
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 654.062;
ORS 659A.800 - 659A.865

Hist.: BLI 5-2012(Temp),
f. & cert. ef. 6-13-12 thru 12-10-12; BLI 7-2012, f. & cert. ef. 8-8-12;
BLI 13-2013, f. & cert. ef. 12-30-13; BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0040
Amendment of Complaints
(1) This section does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). Complaints of housing discrimination must be
amended in accordance with OAR 839-003-0205.
(2) The division may amend
a complaint to correct technical defects and to add additional persons as respondents.
The division may amend a complaint on its own initiative or at the aggrieved person’s
request (with the division's agreement) at any time prior to the issuance of formal
charges, except that respondents may only be added during the course of investigation.
Examples of technical defects include: clerical errors, additions or deletions,
name and address corrections, and statute or rule citation errors.
(3) A complaint may be amended
to add a protected class only if the addition is supported by facts already alleged.
New facts may not be added. If new facts are alleged, the aggrieved person must
file a new complaint meeting the standards provided in OAR 839-003-0005(5).
(4) Amended complaints need
not be verified or signed by the aggrieved person.
(5) The division will send
a copy of the amended complaint to the aggrieved person and all respondents.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.820

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 2-2005, f. 1-6-05, cert.
ef. 1-7-05; 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 6-2010, f. & cert. ef. 2-24-10;
BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0045
Withdrawal of Complaint
(1) This rule does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). The withdrawal of a housing discrimination complaint
is addressed in OAR 839-003-0210.
(2) An aggrieved person may
voluntarily withdraw a complaint at any time by giving the division written notice
of the aggrieved person’s decision to withdraw. If the aggrieved person wants
a federal "right to sue letter," the aggrieved person must provide a written request
to EEOC or to the division. If the aggrieved person makes the request to the division,
the division will forward the request to EEOC.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0050
Administrative Dismissal
(1) This section does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). Administrative dismissal of a housing discrimination
complaint is addressed in OAR 839-003-0215.
(2) The division will dismiss
the complaint if it determines that the bureau has no jurisdiction over the allegations
of the complaint.
(3) The division may dismiss
the complaint if the aggrieved person files a proceeding, based on the same set
of facts, with another state or federal agency having the authority to provide remedy
to the aggrieved person for the alleged discrimination.
(4) If an aggrieved person
or the aggrieved person’s attorney fails to cooperate with the division, the
division may dismiss the complaint.
(5) The aggrieved person
must notify the division in writing of address and telephone number changes. When
an aggrieved person cannot be located by reasonable efforts, the division may dismiss
the complaint.
(6) The division will dismiss
a complaint unless substantial evidence of unlawful discrimination is found. Such
dismissal notice will include a statement that the complaint has been dismissed
and a notice of the aggrieved person’s right to file a civil action, if such
right exists.
(7) The division will dismiss
complaints alleging violation of federal discrimination statutes administered by
EEOC (see OAR 839-003-0015) in accordance with federal requirements.
(8) The division may elect
to administratively dismiss a complaint without investigation. In such instances,
the division will notify the aggrieved person and respondent of the dismissal and
issue notice of the aggrieved person’s right to file a civil action, if such
right exists.
(9) The division will dismiss
a complaint if it learns that the aggrieved person has filed a civil action alleging
the same matters, as provided in OAR 839-003-0020.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 30.680,
659A.835, 659A.850 & 659A.870 - 659A.885

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0055
Conciliation Agreements Prior to
Completion of the Investigation
As used in enforcing ORS chapter 659A,
including housing discrimination under ORS 659A.145 or 659A.421 or the federal Fair
Housing Act (42 U.S.C. 3601 – 3614a):
(1) The division encourages
aggrieved persons and respondents to resolve complaints by mutual agreement at any
time. The division will facilitate settlement negotiations between the aggrieved
person and respondent, as provided in this rule, at any time during the investigation.
(2) If the aggrieved person
and respondent agree upon settlement, the division will draft a settlement agreement
that states:
(a) That a "no fault" settlement
has been reached;
(b) That the aggrieved person,
the respondent and the Civil Rights Division accept the terms of the agreement as
a resolution of the complaint;
(c) The specific action(s)
the aggrieved person and respondent will take as a result of the complaint settlement
and the time within which the action(s) will be taken; and
(d) That the division may
investigate any alleged breach of the agreement.
(3) The settlement agreement
will not include release language that applies to any forum other than the Civil
Rights Division.
(4) The aggrieved person,
the respondent and a representative of the division will sign the division's settlement
agreement. Upon execution of this agreement, the division will notify the aggrieved
person and respondent that the complaint is dismissed. The aggrieved person and
respondent will receive copies of the signed agreement.
(5) The division may allow
the aggrieved person and the respondent to enter into a private agreement with release
language in addition to the division's agreement. The division will not be a party
to nor enforce private agreements and they do not become part of the agency record.
(6) Nothing in these rules
is intended to preclude private settlement between the aggrieved person and the
respondent.
(7) Nothing said or done
in the course of settlement discussions concerning a complaint alleging an unlawful
practice may be disclosed in any manner, including but not limited to disclosure
under ORS 192.410 to 192.505 (public records law), or be used as evidence in a subsequent
proceeding without the written consent of the persons concerned.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.835,
659A.840 & 659A.850

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0060
Fact-Finding Conference
(1) This rule applies to complaints
of unlawful practices, including housing discrimination under ORS 659A.145 or 659A.421
or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a).
(2) At its discretion, the
division may hold a fact-finding conference. This conference may encompass part
or all of the division's investigation of the complaint. The aggrieved person and
the respondent will attend the conference and a division representative will conduct
the conference. The purposes of the conference will be to:
(a) Review evidence regarding
the complaint;
(b) Identify the undisputed
elements of the complaint;
(c) Define and, if possible,
resolve the disputed elements of the complaint; and
(d) Attempt to settle the
complaint.
(3) The division will schedule
the conference, notifying the aggrieved person and the respondent of the time and
place. The division may require the aggrieved person and the respondent to provide
information and documents relevant to the complaint. The division may issue subpoenas
ad testificandum to compel the respondent's representatives to attend the conference
and issue subpoenas duces tecum to compel the production of documents at the conference.
(4) The conference may be
rescheduled, subject to the division's approval, at the request of the aggrieved
person] or the respondent, or at the division's discretion.
(5) The aggrieved person’s
failure to attend the conference may cause the complaint to be administratively
dismissed if the division determines that the aggrieved person has failed to cooperate
pursuant to OAR 839-003-0050(3).
(6) If the aggrieved person
attends the conference but the respondent's representatives fail to attend, the
division representative may proceed based on the information in the division's possession.
(7) The respondent's representatives
at a fact-finding conference should include persons with:
(a) Knowledge of the facts
bearing on the complaint; and
(b) Authority to negotiate
a settlement agreement.
(8) The aggrieved person
and the respondent may be accompanied by legal counsel, but counsel's role is strictly
limited to providing legal advice to the counsel's client.
(9) The division's representative
conducting the conference may:
(a) Question the participants
about facts alleged in the complaint, or the response;
(b) Ask for additional statements
and documentation from the aggrieved person and the respondent;
(c) Terminate discussion
of a particular point when further discussion would be irrelevant or repetitive;
(d) Exclude witnesses with
the exception of the aggrieved person, the respondent and counsel;
(e) Order unruly participants
to leave the conference;
(f) Audio-record the conference
with the knowledge of the participants;
(g) Attempt to negotiate
a settlement agreement between the parties; and
(h) Recess or terminate the
conference at any time.
(10) If the conference does
not result in settlement, the division will either continue the investigation or
dismiss the complaint. This subsection does not apply to housing discrimination
complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C.
3601 – 3614a).
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800,
659A.850 & 659A.860

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 1-1993, f. 3-25-93, cert. ef. 4-1-93; BL 4-1996, f. & cert.
ef. 3-12-96; BLI 11-2000, f. & cert. ef. 3-24-00; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0065
Investigations
(1) This rule does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). Investigation of housing discrimination complaints
is addressed in OAR 839-003-0220.
(2) The division may investigate
the allegations contained in a complaint to determine objectively whether there
is substantial evidence of unlawful discrimination. The division will determine
the method by which complaints will be investigated or otherwise processed. The
division will not investigate allegations occurring more than one year prior to
the date the complaint was filed unless the allegations constitute a continuing
violation or the circumstances occurring more than one year prior to the date the
complaint was filed pertain to timely allegations.
(3) The investigation may
include interviews with the aggrieved person, the respondent’s representatives,
and any other persons whom the division chooses to interview. The investigation
may also involve the examination and analysis of written documents.
(4) The investigator may
audio-record statements with the knowledge of the participants.
(5) The respondent has the
right to have a representative present during interviews of current supervisory
employees.
(6) The respondent's current,
non-supervisory, or former employees, may request that a representative for the
respondent be present during interviews by a division representative.
(7) An aggrieved person,
respondent or witness interviewed by the division may request a copy of the summary
report of the individual's own interview. The division may request that the aggrieved
person, respondent or witness confirm by signature that the summary report is an
accurate representation of the interview. The aggrieved person, respondent or witness
may submit to the division additional comments regarding the interview.
(8) The division representative
may make written request to the respondent for documents, records, files or other
sources of evidence. The respondent will provide such information within 21 days
of the date of the division's written request. The division may grant the respondent
additional time in which to respond.
(9)The division may issue
subpoenas compelling division access to premises, records and witnesses. Failure
to respond to a subpoena may result in the division making a determination based
on available information.
(10) Upon conclusion of the
investigation, the division will either issue a substantial evidence determination
or will dismiss the complaint. The division will mail a copy of the substantial
evidence determination or dismissal notice to the aggrieved person and respondent.
(11) If the division does
not find substantial evidence of unlawful discrimination, the division will dismiss
the complaint, notify the aggrieved person and respondent of the dismissal and notify
the aggrieved person of the right to file a civil action, if such right exists.
(12) If the division finds
substantial evidence of unlawful discrimination, the complaint may be assigned to
a division representative for settlement. However, the commissioner may proceed
directly to a contested case hearing if the interests of justice so require.
(13) A substantial evidence
determination or dismissal may not be appealed to the division.
(14) The division may reopen
a case at its own discretion.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800,
659A.805, 659A.835, 659A.870 - 659A.885

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 13-1981, f. & ef. 11-18-81; BL 12-1982, f. & ef. 8-10-82;
BL 12-1992(Temp), f. & cert. ef. 11-3-92; BL 2-1993, f. 3-25-93, cert. ef. 4-1-93;
BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI
11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0070
Settlement Process After Substantial
Evidence Determination
(1) This section does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). The settlement process after a substantial evidence
determination in housing discrimination complaints is addressed in OAR 839-003-0225.
(2) If the division finds
substantial evidence of unlawful practices, the division may seek to eliminate the
effects of the unlawful discriminatory act(s) by conference, settlement and persuasion.
The division will facilitate settlement negotiations between the aggrieved person
and respondent as provided in OAR 839-003-0055.
(3) If no settlement agreement
is reached in the period of time set aside for settlement after a substantial evidence
determination, the division retains the discretion to further negotiate settlement,
administratively dismiss the complaint, or proceed to a contested case hearing.
(4) The aggrieved person
may withdraw the aggrieved person’s own complaint at any time.
(5) Nothing said or done
in the course of settlement discussions concerning a complaint alleging an unlawful
practice may be disclosed in any manner, including but not limited to disclosure
under ORS 192.410 to 192.505 (public records law), or be used as evidence in a subsequent
proceeding, without the written consent of the persons concerned.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.835
& 659A.840

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0080
Access to Records in Investigative
Files
(1) Investigatory information relating
to any complaint filed under ORS 659A.820 or 659A.825, until such time as the complaint
is resolved under ORS 659A.835, or a final order is issued under ORS 659A.850, is
exempt from disclosure under Oregon Public Records Law (ORS 192.410 to 192.505)
unless the public interest requires disclosure in the particular instance, as determined
by the division.
(2) Section (1) of this rule
applies to all records in the investigative file of a complaint other than the complaint
document.
(3) Notwithstanding sections
(1) and (2) of this rule, [However,] an aggrieved person, respondent or witness
interviewed by the division may request a copy of the summary report of the individual's
own interview, and may request to inspect or receive copies of records that the
individual has given to the division.
(4) After a complaint is
closed, any person may request to inspect or obtain a copy of the file as provided
under Oregon Public Records Law by following the procedures set out by the division
in the case closing letter, or by following the procedures for requesting public
records as set out on the Bureau of Labor and Industries’s web site at http://www.oregon.gov/boli/Pages/Public-Records-Requests/Landing.aspx.
(5) The division will not
disclose information prohibited from disclosure by ORS 659A.840(6) or by any other
state or federal law or under any contractual agreement between the bureau and federal,
state and local agencies.
(6) An aggrieved person’s
or respondent's designation of information as confidential will not supersede the
Oregon Public Records Law.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 192.440(3)
& 192.501(8)

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 10-1984(Temp), f. & ef. 9-6-84; BL 4-1996, f. & cert. ef.
3-12-96; BLI 11-2000, f. & cert. ef. 3-24-00; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0085
Subpoenas
As used in enforcing ORS chapter 659A,
including housing discrimination under ORS 659A.145 or 659A.421 or the federal Fair
Housing Act (42 U.S.C. 3601 – 3614a):
(1) The commissioner or the
commissioner's designee may issue a subpoena to require:
(a) The presence and testimony
of witnesses;
(b) The production of evidence,
including but not limited to books, records, correspondence or documents in the
possession or under the control of the person subpoenaed; and
(c) Access to evidence to
be examined or copied.
(2) If any person fails to
comply with a subpoena issued under this rule, the commissioner may initiate the
legal procedures necessary to enforce compliance.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800(4)

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0090
Remedy
(1) This section does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). Remedies in complaints of housing discrimination
are addressed in OAR 839-003-0230.
(2) In cases of unlawful
employment practices, remedy includes, but is not limited to:
(a) Employment or reemployment;
(b) Wages or other benefits
lost due to the unlawful practice;
(c) Out-of-pocket expenses
attributable to the unlawful practice;
(d) Compensation for emotional
distress and impaired personal dignity; and
(e) Interest.
(3) Consideration of all
acts alleged to comprise a hostile work environment in a complaint, including alleged
acts occurring outside the one year statute of limitations for filing a complaint,
is permissible for the purposes of assessing liability, so long as any act contributing
to that hostile work environment takes place within the statutory period.
(3) In order to recover damages
for lost wages, the aggrieved person will generally be required to mitigate damages
by seeking employment.
(a) Earned income from employment
may be deducted from lost wage damages.
(b) In most cases, unearned
income such as unemployment or public assistance benefits will not be deducted from
lost wage damages.
(4) Settlements of complaints
and the awards in commissioner's Final Orders do not necessarily include all possible
remedies named in sections (2) and (3) of this rule. Nothing in this rule will be
construed to limit or alter the statutory powers of the commissioner to protect
the rights of persons similarly situated to the aggrieved person or to order the
performance of an act or a series of acts designed to eliminate the effect of any
unlawful practice found.
(5) The commissioner may
order the respondent to eliminate the effects of any unlawful practice found and
may require respondent to:
(a) Perform a designated
act or series of acts that are calculated to carry out the policy of these rules
in order to eliminate the effects of an unlawful practice and to protect the rights
of those affected;
(b) Take action and submit
reports to the commissioner on the manner of compliance with the terms and conditions
specified in the commissioner's order or agreement;
(c) Refrain from any action
prohibited by the order or agreement that would jeopardize the rights of the individuals
or groups named in the complaint or would frustrate the purpose and the policy of
these rules and relevant statutes.
(6) When the respondent makes
an offer of remedy, the division will inform the aggrieved person of the offer.
If the aggrieved person does not accept an offer that the division has determined
will eliminate the effects of the unlawful practice, the division may dismiss the
complaint.
(7) Any settlement agreement
signed by the division or order issued by the commissioner may be enforced by mandamus
or injunction or by civil action to compel specific performance.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800
- 659A.865

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 20-2005, f. 10-20-05,
cert. ef. 10-21-05; BLI 8-2006, f. 3-16-06 cert. ef. 3-20-06; 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 13-2013, f. & cert.
ef. 12-30-13; BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0095
Enforcement of Settlement Agreements
and Orders
(1) This section does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). Enforcement of settlement agreements and orders
in housing cases is addressed in OAR 839-003-0240.
(2) The commissioner or any
person aggrieved by the violation of the terms and conditions of any settlement
agreement may file a civil action or an action for a writ of mandamus alleging breach
of a settlement agreement to which the division is a party as provided under ORS
659A.840 and 659A.860 in the manner provided by ORS 659A.885(3) for unlawful practices.
(3) The commissioner and
any person aggrieved by the violation of the terms and conditions of a cease and
desist order issued by the commissioner whether by a respondent or by any agent
or successor in interest of the respondent, may bring a civil action in the manner
provided by ORS 659A.885 (3) and recover the same relief as provided by ORS 659A.885
(3) for unlawful practices.
(4) An aggrieved person may
also file a complaint with the commissioner to seek enforcement of a settlement
agreement to which the division is a party, within one year after the act or omission
alleged to be a violation of the agreement. The commissioner will process the complaint
in the same manner as provided for a complaint filed under ORS 659A.820.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.850,
659A.860 & 659A.865

Hist.: BL 7-1981, f. &
ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert.
ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; 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 9-2015, f. & cert. ef. 6-29-15
839-003-0100
Commissioner’s Complaint
(1) This section does not apply to housing
discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing
Act (42 U.S.C. 3601 – 3614a). Commissioner’s complaints of housing discrimination
are addressed in OAR 839-003-0245.
(2)The commissioner of the
Bureau of Labor and Industries may make, sign and file a complaint whenever the
commissioner has reason to believe that any person or group of persons has been
denied rights due to an unlawful practice or employment practice. The complaint
will be processed in the same manner as any other complaint filed under OAR 839-003-0025.
(3) The commissioner may
identify an aggrieved person or persons in a commissioner’s complaint, by
name, pseudonym or by general description as being aggrieved by an alleged unlawful
practice or otherwise similarly situated to a person eligible to file a complaint
under ORS 659A.820.
(4) Any cease and desist
order issued in a proceeding in which the commissioner filed a complaint may, in
addition to any other action authorized by law, include remedies for an aggrieved
person or persons.
(5) In the matter of concurrent
complaints, nothing in these rules will be construed to:
(a) Require or prohibit the
filing of a commissioner's complaint involving the same or similar issues or allegations
stated in any other complaint filed with the division or circuit court by an individual
under ORS 659A.820, 659A.825, or 659A.885;
(b) Require or prohibit the
continued processing or initiation of a commissioner's complaint in the event that
a complaint filed with the division or circuit court by an individual under ORS
659A.820, 659A.825, or 659A.885, is resolved or dismissed, with or without remedy
to the individual; or
(c) Alter or limit an individual's
private right of action provided under ORS 659A.870 to 659A.885.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800
- 659A.865

Hist.: BL 7-1985(Temp), f.
& ef. 10-17-85; BL 11-1986, f. & ef. 10-29-86; BL 4-1996, f. & cert.
ef. 3-12-96; BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert.
ef. 5-17-02; 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 13-2013, f. & cert. ef. 12-30-13; BLI 9-2015, f. & cert. ef. 6-29-15
Complaints of Housing Discrimination
839-003-0200
Filing a Complaint Under State and
Federal Housing Discrimination Laws
(1) An aggrieved person alleging an
unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal
Fair Housing Act (42 U.S.C. 3601 – 3614a) includes a person alleging they
have 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.
(2) An aggrieved person alleging
unlawful practices under ORS 659A.145 or 659A.421 or discrimination under the federal
Fair Housing Act (42 U.S.C. 3601 – 3614a), or the person's attorney, or the
commissioner may file a complaint, in person or by mail, with the division at any
bureau office in the state of Oregon. Complaint means a written statement signed
by the aggrieved person that:
(a) Gives the name and address
of the aggrieved person and the respondent;
(b) Describes the acts or
omissions alleged to be an unlawful practice, including those acts or omissions
the aggrieved person believes are about to occur and;
(c) Describes how the aggrieved
person was harmed or will be harmed by such actions.
(3) The filing date is the
date the division receives a complaint that meets the standards contained in OAR
839-003-0200(2).
(4) An aggrieved person must
file a complaint with the division no later than one year after the alleged unlawful
practice. If the alleged unlawful practice is of a continuing nature, the right
to file a complaint exists so long as the aggrieved person files the complaint within
one year of the most recent date the alleged unlawful practice occurred.
(5) The procedures for filing
a complaint are as follows:
(a) An aggrieved person or
the aggrieved person's attorney makes an inquiry to the division;
(b) The division may provide
the aggrieved person or the aggrieved person's attorney with a letter of information
and/or questionnaire;
(c) If the division determines
the aggrieved person has a basis for filing a complaint, the division will draft
a complaint based upon the information provided by the aggrieved person and send
or give the complaint to the aggrieved person or the aggrieved person's attorney
for verification. The aggrieved person or the aggrieved person's attorney will request
any necessary changes to the complaint.
(d) The aggrieved person
will verify and sign the complaint. The complaint will then be submitted to the
division.
(e) If the aggrieved person
is an unemancipated minor, the complaint must be signed on behalf of the minor by
the parent or legal guardian of the minor.
(6) The division will serve
notice upon the aggrieved person acknowledging the filing of the complaint and advising
the aggrieved person of the time limits and choice of forums provided under ORS
chapter 659A and the federal Fair Housing Act (42 U.S.C. 3601 – 3614a).
(7) Within 10 days after
the filing of a complaint, the division will serve the respondent with a copy of
the original complaint that identifies the alleged discriminatory housing practice
and a notice that advises the respondent of the procedural rights and obligations
of the respondent, including the respondent’s right to file an answer to the
complaint.
(8) Each respondent may file,
not later than 10 days after receipt of notice from the division, an answer to such
complaint.
Stat. Auth.: ORS 659A.805

Stats. Implemented: 659A.145,
659A.421, 659A.820, 42 U.S.C. 3601 et seq.

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 6-2010, f. & cert.
ef. 2-24-10; BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12; BLI 7-2012,
f. & cert. ef. 8-8-12; BLI 8-2012(Temp), f. & cert. ef. 8-8-12 thru 1-31-13;
BLI 11-2012, f. & cert. ef. 10-10-12; BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0205
Amending a Housing Discrimination
Complaint
(1) The division may amend a complaint
to correct technical defects, to add additional persons as respondents and to add
additional information found during the investigation of a complaint, including
new factual allegations. The division may amend a complaint on its own initiative
or at the aggrieved person’s request (with the division's agreement) at any
time prior to the issuance of formal charges, except that respondents may only be
added during the course of investigation. Examples of technical defects include:
clerical errors, additions or deletions, name and address corrections, and statute
citation errors.
(2) Within 10 days after
identifying an additional person who will named as a respondent, the division will
serve the person with a copy of the complaint that identifies the alleged discriminatory
housing practice and a notice that advises the person of the procedural rights and
obligations of the person, including the person’s right to file an answer
to the complaint.
(a) Such notice, in addition
to meeting the requirements of subsection (1)(a), will explain the basis for the
division’s belief that the person to whom the notice is addressed is properly
joined as a respondent.
(b) Each respondent may file,
not later than 10 days after receipt of notice from the division, an answer to such
complaint.
(3) The division will send
a copy of the amended complaint to the aggrieved person and all respondents.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.145,
659A.421, 659A.820

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 9-2015, f. & cert. ef. 6-29-15
839-003-0210
Withdrawal of a Housing Discrimination
Complaint
An aggrieved person may voluntarily
withdraw a complaint at any time by giving the division written notice of the aggrieved
person’s decision to withdraw. The division will then close the case.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 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 9-2015, f. & cert. ef. 6-29-15
839-003-0215
Administrative Dismissal of a Housing
Discrimination Complaint
(1) The division will dismiss the complaint
if it determines that the bureau has no jurisdiction over the allegations of the
complaint.
(2) If an aggrieved person
or the aggrieved person’s attorney fails to cooperate with the division, the
division may dismiss the complaint.
(3) The aggrieved person
will notify the division in writing of address and telephone number changes. When
an aggrieved person cannot be located by reasonable efforts, the division may dismiss
the complaint.
(4) The division will dismiss
a complaint unless substantial evidence of unlawful practices is found. The division
will provide written notice of such dismissal to the aggrieved person and respondent.
(5) The division cannot issue
a finding of substantial evidence of discrimination after an aggrieved person has
filed a civil action alleging the same matters as provided in OAR 839-003-0235,
and the trial for the civil action has commenced.
(6) The division will dismiss
complaints alleging discrimination under the federal Fair Housing Act (42 U.S.C.
3601 – 3614a) administered by the U.S. Department of Housing and Urban Development
in accordance with federal requirements.
(7) The division will notify
the aggrieved person in writing of the right to file a civil action in state court,
as provided in ORS 659A.870 to 659A.885, when a complaint is dismissed by the division.
An aggrieved person filing a civil action against a public body must also file a
tort claim notice as required by ORS 30.275.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 30.680,
659A.145, 659A.421, 659A.835, 659A.850 & 659A.870 - 659A.885

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 9-2015, f. & cert. ef. 6-29-15
839-003-0220
Housing Discrimination Investigations
(1) The division will investigate the
allegations contained in any complaint filed under ORS 659A.820 or 659A.825 alleging
an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the
federal Fair Housing Act (42 U.S.C. 3601 – 3614a) to determine whether there
is substantial evidence of unlawful discrimination. The division will determine
the method by which complaints will be investigated or otherwise processed. The
division will not investigate allegations occurring more than one year prior to
the date the complaint was filed unless the allegations constitute a continuing
violation or the circumstances occurring more than one year prior to the date the
complaint was filed pertain to timely allegations.
(2) The division will commence
an investigation of any complaint alleging an unlawful practice under ORS 659A.145
or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601
– 3614a) within 30 days after the timely filing of the complaint.
(3)(a) At the end of each
investigation of a complaint alleging an unlawful practice under ORS 659A.145 or
659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 –
3614a) the division will prepare a final investigative report containing:
(A) The names and dates of
the contacts with witnesses;
(B) A summary and the dates
of correspondence and other contacts with the aggrieved person and the respondent;
(C) A summary description
of other pertinent records;
(D) A summary of witness
statements; and
(E) Answers to interrogatories.
(b) A final investigative
report under this section may be amended if additional evidence is later discovered.
(c) The division will make
the final investigative report available, upon request, to both the aggrieved person
and the respondent.
(4) The division will complete
an investigation of any complaint alleging an unlawful practice under ORS 659A.145
or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601
– 3614a) within 100 days after the filing of the complaint, unless it is impracticable
to do so. If the division is unable to complete the investigation of the complaint
within 100 days after the filing of the complaint the division will notify the aggrieved
person and respondent in writing of the reasons for not doing so.
(5) The division will make
final disposition of any complaint alleging an unlawful practice under ORS 659A.145
or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601
– 3614a) within one year after the filing of the complaint, unless it is impracticable
to do so. If the division is unable to make final disposition of the complaint within
one year the division will notify the aggrieved person and respondent in writing
of the reasons for not doing so.
(6) If the division determines
that it is impracticable to complete an investigation and make final disposition
of any complaint within one year the commissioner’s authority to conduct investigations
or other proceedings to resolve a complaint alleging an unlawful practice under
ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42
U.S.C. 3601 – 3614a) does not cease after the one year period, under ORS 659A.830
(3).
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.145,
659A.421, 659A.800, 659A.805, 659A.835 & 659A.870 - 659A.885

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 9-2015, f. & cert. ef. 6-29-15
839-003-0225
Settlement Process After Substantial
Evidence Determination in Housing Discrimination Complaints
(1) During the period beginning with
the filing of a complaint and ending with the filing of a charge or a dismissal
by the division, the division will, to the extent feasible, seek to eliminate the
effects of the unlawful discriminatory act(s) by engaging in conciliation, settlement
and persuasion. The division will facilitate any settlement negotiations between
the aggrieved person and respondent as provided in OAR 839-003-0055.
(2) Nothing said or done
in the course of settlement discussions concerning a complaint alleging an unlawful
practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair
Housing Act (42 U.S.C. 3601 – 3614a) may be disclosed under ORS 192.410 to
192.505 (the Oregon Public Records Act) or in any other manner, or used as evidence
in a subsequent proceeding under this chapter or the federal Fair Housing Act (42
U.S.C. 3601 – 3614a) without the written consent of the persons concerned.
(3) If no settlement agreement
is reached, the division retains the discretion to further negotiate settlement,
administratively dismiss the complaint, or proceed to a contested case hearing.
(4) The aggrieved person
may withdraw the aggrieved person’s complaint at any time.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.145,
659A.421, 659A.835, 659A.840

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 9-2015, f. & cert. ef. 6-29-15
839-003-0230
Remedies in Housing Discrimination
Complaints
(1) In cases of unlawful practices in
housing, remedy includes, but is not limited to:
(a) Rental, lease or sale
of real property;
(b) Service lost;
(c) Expenses or lost benefits
attributable to the unlawful practice;
(d) Compensation for emotional
distress and for impaired personal dignity; and
(e) Interest.
(2) Settlements of complaints
and the awards in commissioner's final orders do not necessarily include all possible
remedies named in sections (1) of this rule. Nothing in this rule will be construed
to limit or alter the statutory powers of the commissioner to protect the rights
of persons similarly situated to the aggrieved person or to order the performance
of an act or a series of acts designed to eliminate the effect of any unlawful practice
found.
(3) The commissioner may
order the respondent to eliminate the effects of any unlawful practice found and
may require respondent to do one or more of the following:
(a) Perform a designated
act or series of acts that are calculated to carry out the policy of these rules
in order to eliminate the effects of an unlawful practice and to protect the rights
of those affected;
(b) Take action and submit
reports to the commissioner on the manner of compliance with the terms and conditions
specified in the commissioner's order or agreement;
(c) Refrain from any action
prohibited by the order or agreement that would jeopardize the rights of the individuals
or groups named in the complaint or would frustrate the purpose and the policy of
these rules and relevant statutes.
(4) Any person aggrieved
by the violation of terms of a settlement agreement signed by a representative of
the division, or the commissioner, may file an action for mandamus or injunction
or civil action to compel specific performance.
(5) Any person aggrieved
by a violation of an order issued by the commissioner, or the commissioner, may
file an action for mandamus or injunction or civil action to compel compliance.
(6) Any person aggrieved
by violation of a settlement agreement to which the division is a party, may file
a complaint with the commissioner to seek enforcement of the settlement agreement
within one year after the act or omission alleged to be a violation of the agreement.
The commissioner will process the complaint in the same manner as provided for a
complaint filed under ORS 659A.820.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.145,
659A.421, 659A.800, 659A.850, 659A.860, 659A.865 & 659A.885

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 9-2015, f. & cert. ef. 6-29-15
839-003-0235
Civil Action under State and Federal
Housing Law
(1) An aggrieved person alleging an
unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal
Fair Housing Act (42 U.S.C. 3601 – 3614a) may file a civil action as provided
in ORS 659A.870 to 659A.885, or ORS 30.680. A person is not required to file a complaint
of a violation of state law with the division before filing a civil action.
(2) A civil action alleging
an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the
federal Fair Housing Act (42 U.S.C. 3601 – 3614a), may be filed no later than
two years after the occurrence or termination of an alleged discriminatory housing
practice, or within two years after the breach of any settlement agreement entered
into under ORS 659A.840, whichever occurs last. The two-year period may not include
any time during which an administrative proceeding was pending with respect to the
housing practice.
(3) After filing a complaint
with the division, an aggrieved person may file a civil action in state or federal
court alleging the same matters as those alleged in the complaint filed with the
division. The aggrieved person should notify the division of the civil action. When
the division receives notice from the aggrieved person or aggrieved person’s
attorney, or court documents indicating that a civil action has been filed, the
division will not dismiss the complaint until the civil trial commences. The division
will notify the aggrieved person and respondent that the division has dismissed
the complaint and will take no further action.
(4) If formal charges have
been issued with respect to a housing discrimination complaint, and an administrative
law judge has commenced a hearing on the record under ORS chapter 659A, the aggrieved
person may not commence a civil action in court that alleges the same matters.
(5) When the commissioner
of the Bureau of Labor and Industries or the attorney general of the State of Oregon
has reasonable cause to believe that a person or group of persons is engaged in
a pattern or practice of resistance to the rights protected by ORS 659A.145 or 659A.421
or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a), the commissioner
or the attorney general may file a civil action on behalf of the aggrieved individuals
in the same manner as an individual or group of individuals may file a civil action
under ORS 659A.885.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800
- 659A.890

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 13-2013, f. & cert.
ef. 12-30-13; BLI 9-2015, f. & cert. ef. 6-29-15
839-003-0240
Enforcement of Settlement Agreements
and Orders in Housing Discrimination Complaints
(1) The commissioner or any person aggrieved
by violation of the terms of a settlement agreement to which the division is a party,
may file a civil action or an action for a writ of mandamus as provided under ORS
659A.840 and 659A.860 in the manner provided by ORS 659A.885(3).
(2) Any person aggrieved
by the violation of terms of a settlement agreement to which the division is a party,
may file a complaint with the commissioner to seek enforcement within one year after
the act or omission alleged to be a violation of the agreement. The commissioner
will process the complaint in the same manner as provided for a complaint filed
under ORS 659A.820.
(3) The commissioner or any
person aggrieved by violation of an order issued by the commissioner, may file a
civil action or an action for a writ of mandamus as provided under ORS 659A.840
and 659A.860.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.145,
659A.421, 659A.850, 659A.860, 659A.865

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 9-2015, f. & cert. ef. 6-29-15
839-003-0245
Commissioner's Complaint in Housing
Discrimination Cases
(1) The commissioner of the Bureau of
Labor and Industries may make, sign and file a complaint whenever the commissioner
has reason to believe that any person or group of persons has been denied rights
or is about to be denied rights due to an unlawful practice under ORS 659A.145 or
659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). The complaint
will be processed in the same manner as any other complaint filed under OAR 839-003-0200.
(2) The commissioner may
identify an aggrieved person or persons in a commissioner’s complaint, by
name, pseudonym or by general description as being affected by an alleged unlawful
practice or otherwise similarly situated to a person eligible to file a complaint
under ORS 659A.820.
(3) Any cease and desist
order issued in a proceeding in which the commissioner filed a complaint may, in
addition to any other action authorized by law, include remedies for an aggrieved
person or persons.
(4) In the matter of concurrent
complaints, nothing in these rules will be construed to:
(a) Require or prohibit the
filing of a commissioner's complaint involving the same or similar issues or allegations
stated in any other complaint filed with the division or circuit court by an individual
under ORS 659A.820, 659A.825, or 659A.885;
(b) Require or prohibit the
continued processing or initiation of a commissioner's complaint in the event that
a complaint filed with the division or circuit court by an individual under ORS
659A.820, 659A.825, or 659A.885, is resolved or dismissed, with or without remedy
to the individual; or
(c) Alter or limit an individual's
private right of action provided under ORS 659A.870 to 659A.885.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800
- 659A.885

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 13-2013, f. & cert.
ef. 12-30-13; BLI 9-2015, f. & cert. ef. 6-29-15
839-009-0200
Purpose and Scope
(1) The Civil Rights Division of the
Bureau of Labor and Industries enforces the Oregon Family Leave Act (OFLA), ORS
659A.150 to 659A.186, which provides for OFLA leave and prohibits discrimination
against employees using OFLA leave. These rules implement and interpret the Oregon
Family Leave Act.
(2) These rules apply to
complaints and inquiries received under ORS 659A.150 to 659A.186 and under these
rules.
Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.150
- 659A.186

Hist.: BL 2-1995, f. 9-8-95,
cert. ef. 9-9-95; BLI 5-2000, f. & cert. ef. 2-1-00; BLI 10-2002, f. & cert.
ef. 5-17-02

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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and Conditions of Use