ORS 659A.030
Discrimination because of race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, age or expunged juvenile record prohibited


Mentioned in

Discrimination at Work

Oregon Bureau of Labor & Industries, August 7, 2023

“Oregon laws protect you from being discriminated against at work. That means you can’t be fired or demoted, paid less, or otherwise treated differently because of certain characteristics about you.”
 
Bibliographic info

(1)

It is an unlawful employment practice:

(a)

For an employer, because of an individual’s race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age of any other person with whom the individual associates, or because of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) to 419A.271 (Appointment of counsel), to refuse to hire or employ the individual or to bar or discharge the individual from employment. However, discrimination is not an unlawful employment practice if the discrimination results from a bona fide occupational qualification reasonably necessary to the normal operation of the employer’s business.

(b)

For an employer, because of an individual’s race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age of any other person with whom the individual associates, or because of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) to 419A.271 (Appointment of counsel), to discriminate against the individual in compensation or in terms, conditions or privileges of employment.

(c)

For a labor organization, because of an individual’s race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age if the individual is 18 years of age or older, or because of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) to 419A.271 (Appointment of counsel), to exclude or to expel from its membership the individual or to discriminate in any way against the individual or any other person.

(d)

For any employer or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment that expresses directly or indirectly any limitation, specification or discrimination as to an individual’s race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age if the individual is 18 years of age or older, or on the basis of an expunged juvenile record, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupational qualification. Identification of prospective employees according to race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age does not violate this section unless the Commissioner of the Bureau of Labor and Industries, after a hearing conducted pursuant to ORS 659A.805 (Rules for carrying out ORS chapter 659A), determines that the designation expresses an intent to limit, specify or discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age.

(e)

For an employment agency, because of an individual’s race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual orientation, gender identity, national origin, marital status or age of any other person with whom the individual associates, or because of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) to 419A.271 (Appointment of counsel), to classify or refer for employment, or to fail or refuse to refer for employment, or otherwise to discriminate against the individual. However, it is not an unlawful employment practice for an employment agency to classify or refer for employment an individual when the classification or referral results from a bona fide occupational qualification reasonably necessary to the normal operation of the employer’s business.

(f)

For any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so.

(g)

For any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.

(2)

The provisions of this section apply to an apprentice under ORS 660.002 (Declaration of policy) to 660.210 (Tort liability of committees, officers, employees and agents), but the selection of an apprentice on the basis of the ability to complete the required apprenticeship training before attaining the age of 70 years is not an unlawful employment practice. The commissioner shall administer this section with respect to apprentices under ORS 660.002 (Declaration of policy) to 660.210 (Tort liability of committees, officers, employees and agents) equally with regard to all employees and labor organizations.

(3)

The compulsory retirement of employees required by law at any age is not an unlawful employment practice if lawful under federal law.

(4)

Intentionally left blank —Ed.

(a)

It is not an unlawful employment practice for an employer or labor organization to provide or make financial provision for child care services of a custodial or other nature to its employees or members who are responsible for a minor child.

(b)

As used in this subsection, “responsible for a minor child” means having custody or legal guardianship of a minor child or acting in loco parentis to the child.

(5)

This section does not prohibit an employer 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 and the dress code or policy does not have a disproportionate adverse impact on members of a protected class to a greater extent than the policy impacts persons generally. [Formerly 659.030; 2007 c.100 §4; 2021 c.239 §4; 2021 c.367 §35; 2021 c.585 §10]

Source: Section 659A.030 — Discrimination because of race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, age or expunged juvenile record prohibited, https://www.­oregonlegislature.­gov/bills_laws/ors/ors659A.­html.

Notes of Decisions

There is no ambiguity requiring the commissioner to issue a rule defining the terms of statute in order for him to issue Cease and Desist Order based upon it. Sterling v. Klamath Forest Protective Assn., 19 Or App 383, 528 P2d 574 (1974)

The exception of “bona fide occupational requirement reasonably necessary to normal operation of employer’s business” must not be unduly limited but must be construed fairly by giving it usual, normal and evenhanded application. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

In proving a “bona fide occupational requirement,” employer’s burden of proof is by preponderance or outweighing of evidence. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

Under evidence that college informed art instructor applicant that if she persisted in discrimination complaint, she would not be considered for future openings and that college failed to consider her for later opening for which she was qualified, it was permissible inference that this constituted prohibited retaliatory action. Lewis and Clark College v. Bureau of Labor, 43 Or App 245, 602 P2d 1161 (1979), Sup Ct review denied

Under former version of this section, evidence supported Labor Commissioner’s finding that maximum hiring age of 36 was not bona fide requirement for employment of fire dispatchers. Clackamas Co. Fire Protection Dist. v. Bureau of Labor, 50 Or App 337, 624 P2d 141 (1981), Sup Ct review denied

That employer attempted to rehire previously laid-off male employe, would not establish unlawful discrimination against female applicant unless it could be demonstrated that offer to rehire was based upon an intent on employer’s part to avoid hiring female applicant. Brady v. Bureau of Labor, 55 Or App 619, 639 P2d 673 (1982)

Evidence that female city employee was put in lower classification and given lower wage for performing essentially same duties as her male counterparts afforded rational basis for decision by State Commissioner of Labor finding unlawful disparity of pay by reason of sex. City of Portland v. Bureau of Labor and Ind., 298 Or 104, 690 P2d 475 (1984)

In determining whether blanket hiring age limitation for firefighters was bona fide occupational requirement under this section, Labor Commissioner’s consideration of public safety, relationship of chronological age to job performance and practicability of individually screening applicants for physical qualifications was proper. Civil Service Board of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

Blanket hiring age limitation for firefighters was not bona fide occupational requirement reasonably necessary to operation of Fire Bureau. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

Operation of this section to invalidate discriminatory city charter provision limiting hiring age of firefighters does not violate “home rule” amendments of Oregon Constitution. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

Economic justifications for discrimination, such as adverse impact on pension and disability plans, are not to be included as bona fide occupational requirements reasonably necessary to employer’s business. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

Where court ruled that plaintiff failed to allege intentional discrimination because of sex, defendant’s motion to dismiss plaintiff’s claims under this section was granted with leave to amend. Forsberg v. Pacific Northwest Bell Telephone Co., 623 F Supp 117 (1985)

Employer’s health plan, providing less medical coverage for female employe’s pregnancy than provided for pregnancy of male employe’s wife, violated this section. Hillesland v. Paccar, Inc., 80 Or App 286, 722 P2d 1239 (1986), Sup Ct review denied

National Labor Relations Act does not preempt plaintiff’s state statutory claim for sex discrimination. Munsey v. Plumbers’ Local #51, 85 Or App 396, 736 P2d 615 (1987)

Where action was brought for wrongful discharge and former employer made motion to dismiss wrongful discharge claim for intentional infliction of emotional distress, since claim did not rest on same factual basis as age discrimination claim, claim not barred under Oregon law. Malone v. Safeway Stores, Inc., 698 F Supp 207 (D. Or. 1987)

Discrimination statute does not preempt tort of intentional infliction of emotional distress. Palmer v. Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988)

Where discharged employee brought age discrimination action against employer, fact that all four of employees terminated after “government work” investigation were over age of 40 is insufficient evidence to establish a disparate impact claim based upon age discrimination in absence of evidence that hourly workers under age of 40 who engaged in similar degree of “government work” were spared from discharge and motion for summary judgment granted. John v. Georgia-Pacific Corp., 697 F Supp 1156 (D. Or. 1988)

Where employer and union entered collective bargaining negotiations and created new position for mechanized loop testing, it did not violate this section in paying woman less than men in prior similar position of test desk technician. Forsberg v. Pacific Northwest Bell Telephone Co., 840 F2d 1409 (1988)

Where terminated employee sued former employer for wrongful discharge alleging employer violated covenants of good faith and fair dealing in express and implied employment contract, termination of employee in order to deprive employee of benefits to which employee would otherwise have become entitled if employment continued is breach of obligation to perform in good faith. Messer v. Portland Adventist Medical Center, 707 F Supp 449 (D. Or. 1989)

Where defendant’s adverse actions were substantial factor in deterioration of plaintiff’s health and plaintiff left employment because of defendant’s retaliation, plaintiff was constructively discharged in violation of this section. Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (1990)

Discharge because of pregnancy does not state claim of wrongful discharge, but is unlawful act of sex discrimination. Cross v. Eastlund, 103 Or App 138, 796 P2d 1214 (1990), Sup Ct review denied

Plaintiff who resigns from employment must establish constructive discharge by showing that defendant deliberately created or maintained working conditions with purpose of forcing her to resign. Bell v. First Interstate Bank, 103 Or App 165, 796 P2d 1226 (1990)

Isolated instances of racial discrimination by employees that do not result from employer policy do not establish continuing violation. Bell v. First Interstate Bank, 103 Or App 165, 796 P2d 1226 (1990)

Multiple family members allegedly fired in retaliation for one family member’s behavior have no derivative wrongful discharge claim. Carlson v. Crater Lake Lumber Co., 103 Or App 190, 796 P2d 1216 (1990), as modified by 105 Or App 314, 804 P2d 511 (1991)

Where allegation is retaliatory termination, there is no common law course of action for wrongful termination because this section provides plaintiff with adequate remedy. Rice v. Comtek Mfg. of Oregon, Inc., 766 F Supp 1544 (1990)

Racial epithets by one employee did not constitute pervasive workplace harassment subjecting employer to liability for maintaining racially hostile work environment. Haskins v. Owens-Corning Fiberglas Corp., 811 F Supp 534 (1992)

Rule that allows religious advances to constitute discrimination where employer is motivated by fact that employee has different religious beliefs does not exceed agency authority. Meltebeke v. Bureau of Labor and Industries, 120 Or App 273, 852 P2d 859 (1993), aff’d 322 Or 132, 903 P2d 351 (1995)

Claim of sexual advances or sexual harassment by supervisor was adequate pleading of discrimination to support claim for intentional infliction of emotional distress and wrongful discharge. McGanty v. Staudenraus, 123 Or App 393, 859 P2d 1187 (1993), aff’d 321 Or 532, 901 P2d 841 (1995)

Standard for determining employer responsibility for hostile work environment by supervisor is whether employer knew or should have known of harassment and failed to take prompt remedial action against supervisor. Mains v. II Morrow, Inc., 128 Or App 625, 877 P2d 88 (1994)

Pervasive and severe conduct by employer regarding statutorily protected area that intentionally causes intimidating, hostile or offensive working environment is discrimination in terms of employment. Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 903 P2d 351 (1995)

Discriminatory action by agent acting within scope of authority is act of employer. Schram v. Albertson’s, Inc., 146 Or App 415, 934 P2d 483 (1997)

Discrimination based upon sex of any person with whom person associates includes discrimination based upon sexual orientation of person. Tanner v. OHSU, 157 Or App 502, 971 P2d 435 (1998)

Employer conduct does not need to be sexual in nature to constitute discrimination because of employee’s sex. A.L.P. Incorporated v. Bureau of Labor and Industries, 161 Or App 417, 984 P2d 883 (1999)

Sexual harassment by person of same gender may form basis for discrimination claim. Harris v. Pameco Corp., 170 Or App 164, 12 P3d 524 (2000)

Provision in collective bargaining agreement that deters employees from attempt to pursue statutorily protected right to seek judicial or administrative resolution of grievance related to collective bargaining agreement violation is retaliatory and unlawfully discriminatory. PSU Association of University Professors v. PSU, 352 Or 697, 291 P3d 658 (2012)

Person who was sole decision-maker and who acted within course and scope of authority as owner and managing director when person terminated plaintiff’s employment cannot be individually liable as to plaintiff’s retaliation claims based on aiding and abetting under this section. Aichele v. Blue Elephant Holdings, LLC, 292 F. Supp. 3d 1104 (D. Or. 2017)

Where defendant engaged in retaliatory behavior against plaintiff, who assisted defendant on full-time basis at former shared workplace, outside of workplace and after neither party was employed at workplace, defendant discriminated against plaintiff even though defendant had never had authority to discharge or expel plaintiff from employment. McLaughlin v. Wilson, 292 Or App 101, 423 P3d 133 (2018), aff’d 365 Or 535, 449 P3d 492 (2019)

Disparaging statements made by plaintiff’s former supervisor to admissions officer at plaintiff’s MBA program, after supervisory relationship ended, are sufficient to support retaliation claim under this section. McLaughlin v. Wilson, 365 Or 535, 449 P3d 492 (2019)

Burden to show employer’s notice or knowledge does not arise when hostile working environment is created by employer or person who stands in employer’s shoes. H.K. v. Spine Surgery Center of Eugene, LLC, 305 Or App 606, 470 P3d 403 (2020), Sup Ct review denied

Aid-or-abet liability under this section applies to “any person” and is not limited to “an employer or employee.” Hernandez v. Catholic Health Initiatives, 311 Or App 70, 490 P3d 166 (2021)

Attorney General Opinions

Constitutionality of mortality tables which differentiate between males and females, (1973) Vol 36, p 449; passing increased health insurance premiums resulting from pregnancy coverage on to women employes, (1978) Vol 39, p 328; subject employers providing medical benefits for pregnancy, childbirth or related medical conditions for wives of male employes equal to medical benefits provided for husbands of female employes, (1980) Vol 40, p 231; refusal to employ individual in particular department of employer solely because individual’s spouse already employed in department, (1980) Vol 40, p 259

Law Review Citations

75 OLR 633, 1253, 1333 (1996); 36 WLR 503 (2000); 79 OLR 721 (2000); 84 OLR 725 (2005); 50 WLR 195 (2014)

659A.001
Definitions
659A.003
Purpose of ORS chapter 659A
659A.004
Short title
659A.006
Declaration of policy against unlawful discrimination
659A.009
Declaration of policy against discrimination in employment because of age
659A.012
State agencies to carry out policy against discrimination in employment
659A.015
Affirmative action reports to include information on contracts to minority businesses
659A.029
“Because of sex” defined for ORS 659A.030
659A.030
Discrimination because of race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, age or expunged juvenile record prohibited
659A.033
Violation of ORS 659A.030 by denying religious leave or prohibiting certain religious observances or practices
659A.036
Short title
659A.040
Discrimination against worker applying for workers’ compensation benefits prohibited
659A.043
Reinstatement of injured worker to former position
659A.046
Reemployment of injured worker in other available and suitable work
659A.049
Rights of reinstatement and reemployment protected
659A.052
Reemployment rights of injured state workers
659A.060
Definitions for ORS 659A.060 to 659A.069
659A.063
State to continue group health benefits for injured worker and covered dependents
659A.066
Worker may continue benefits after employer’s obligation ends
659A.069
Discrimination against state worker applying for benefits under ORS 659A.060 to 659A.069 prohibited
659A.082
Discrimination against person for service in uniformed service prohibited
659A.086
Employment rights of members of organized militia when called into active state service
659A.088
Violation of ORS 659A.086 as unlawful employment practice
659A.089
Notification to Director of Veterans’ Affairs
659A.090
Definitions for ORS 659A.090 to 659A.099
659A.093
Employer required to provide leave
659A.096
Denial of leave, retaliation and discrimination prohibited
659A.099
Short title
659A.103
Policy
659A.104
Description of disability for purposes of ORS 659A.103 to 659A.145
659A.106
Employers to whom ORS 659A.112 to 659A.139 apply
659A.109
Discrimination against individual for using procedures in ORS 659A.103 to 659A.145 prohibited
659A.112
Employment discrimination
659A.115
Qualification for position
659A.118
Reasonable accommodation
659A.121
Undue hardship
659A.122
Definitions for ORS 659A.124, 659A.127 and 659A.130
659A.124
Illegal use of drugs
659A.127
Permitted employer action
659A.130
Conditions that do not constitute impairment
659A.133
Medical examinations and inquiries of job applicants
659A.136
Medical examinations and inquiries of employees
659A.139
Construction of ORS 659A.103 to 659A.145
659A.141
Damages recoverable for harm or theft of assistance animal
659A.142
Discrimination against individual with disability by employment agency, labor organization, place of public accommodation or state government prohibited
659A.143
Assistance animals
659A.144
Required accommodations in transient lodging
659A.145
Discrimination against individual with disability in real property transactions prohibited
659A.146
Reasonable accommodation
659A.147
Prohibited conduct
659A.148
Employers to whom provisions relating to reasonable accommodation apply
659A.150
Definitions for ORS 659A.150 to 659A.186
659A.153
Covered employers
659A.156
Eligible employees
659A.159
Purposes for which family leave may be taken
659A.162
Length of leave
659A.165
Notice to employer
659A.168
Medical verification and scheduling of treatment
659A.171
Job protection
659A.174
Use of paid leave
659A.177
Special rules for teachers
659A.180
Postings by employer
659A.183
Denying family leave to eligible employee prohibited
659A.186
Exclusivity of provisions
659A.190
Definitions for ORS 659A.190 to 659A.198
659A.192
Leave to attend criminal proceeding
659A.194
Denying leave to employee prohibited
659A.196
Notice to employer
659A.198
Use of paid leave
659A.199
Prohibited conduct by employer
659A.200
Definitions for ORS 659A.200 to 659A.224
659A.203
Prohibited conduct by public or nonprofit employer
659A.206
Effects of ORS 659A.200 to 659A.224 on employees
659A.209
Effect on public record disclosures
659A.210
Affirmative defense
659A.212
Policy on cooperation with law enforcement officials
659A.215
Remedies not exclusive
659A.218
Disclosure of employee’s name without consent prohibited
659A.219
Uniform standards and procedures manual for implementation of Whistleblower Law
659A.220
Bureau of Labor and Industries to collect and compile information relating to disclosures
659A.221
Uniform application to all public employers
659A.224
Short title
659A.228
Discrimination for reporting violation of election laws prohibited
659A.230
Discrimination for initiating or aiding in criminal or civil proceedings prohibited
659A.233
Discrimination for reporting certain violations or testifying at unemployment compensation hearing prohibited
659A.236
Discrimination for testifying before Legislative Assembly, committee or task force prohibited
659A.250
Definitions for ORS 659A.250 to 659A.262
659A.253
Restriction of access to employee housing owned or controlled by employer prohibited
659A.256
Regulations by employers concerning use and occupancy of employee housing
659A.259
Eviction from employee housing or discrimination against employee for reporting violations of ORS 659A.250 to 659A.262 prohibited
659A.262
Warrant on behalf of person entitled to access to housing
659A.270
Definitions for ORS 659A.270 to 659A.285
659A.272
Employer required to provide leave
659A.275
Undue hardship
659A.277
Denying leave to employee prohibited
659A.279
Required posting of summaries of statutes and rules
659A.280
Notice to employer
659A.283
Paid leave for public employees
659A.285
Use of paid leave
659A.290
Prohibited conduct by employer
659A.300
Requiring breathalyzer, polygraph, psychological stress or brain-wave test or genetic test prohibited
659A.303
Employer prohibited from obtaining, seeking to obtain or using genetic information
659A.306
Requiring employee to pay for medical examination as condition of continued employment prohibited
659A.309
Discrimination solely because of employment of another family member prohibited
659A.312
Leave of absence to donate bone marrow
659A.315
Restricting use of tobacco in nonworking hours prohibited
659A.318
Discrimination relating to academic degree in theology or religious occupations prohibited
659A.320
Discrimination based on information in credit history prohibited
659A.321
Seniority systems and benefit plans not unlawful employment practices
659A.330
Employee social media account privacy
659A.340
Interfering with employee’s good faith disclosure of information concerning unlawful conduct or certain violations prohibited
659A.343
Discrimination based on individual’s presentation of identification other than Real ID prohibited
659A.347
Discrimination related to possession of valid driver license
659A.350
Interns
659A.355
Discrimination based on wage inquiry or wage complaint
659A.357
Restricting salary history inquiries
659A.360
Restricting criminal conviction inquiries
659A.362
Enforcement
659A.370
Employer prohibited from entering into agreements that prevent employee from discussing certain unlawful conduct
659A.375
Employer policies relating to prevention of discrimination and sexual assault
659A.380
When severance or separation agreements are voidable by employer
659A.400
Place of public accommodation defined
659A.403
Discrimination in place of public accommodation prohibited
659A.406
Aiding or abetting certain discrimination prohibited
659A.409
Notice that discrimination will be made in place of public accommodation prohibited
659A.411
Definitions for ORS 659A.411 to 659A.415
659A.413
Denial of access prohibited
659A.415
Liability for damages
659A.417
Violation of ORS 659A.413
659A.421
Discrimination in selling, renting or leasing real property prohibited
659A.425
Violation based on facially neutral housing policy
659A.550
Discrimination because of employment status prohibited
659A.800
Elimination and prevention of discrimination by Bureau of Labor and Industries
659A.805
Rules for carrying out ORS chapter 659A
659A.810
Willful interference with administration of law and violation of orders of commissioner prohibited
659A.815
Advisory agencies and intergroup-relations councils
659A.820
Complaints
659A.825
Complaints filed by Attorney General or commissioner
659A.830
Authority of commissioner
659A.835
Investigation
659A.840
Settlement
659A.845
Formal charges
659A.850
Hearing
659A.855
Civil penalty for certain complaints filed by commissioner
659A.860
Settlement agreements and orders
659A.865
Retaliatory action prohibited
659A.870
Election of remedies
659A.875
Time limitations
659A.880
Ninety-day notice
659A.885
Civil action
659A.890
Civil action for violation of ORS 659A.865
659A.990
Penalties
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