2017 ORS 652.220¹
Prohibition of discriminatory wage rates based on sex
  • employer not to discriminate against employee who is complainant

(1) No employer shall:

(a) In any manner discriminate between the sexes in the payment of wages for work of comparable character, the performance of which requires comparable skills.

(b) Pay wages to any employee at a rate less than that at which the employer pays wages to employees of the opposite sex for work of comparable character, the performance of which requires comparable skills.

(2) Subsection (1) of this section does not apply where:

(a) Payment is made pursuant to a seniority or merit system which does not discriminate on the basis of sex.

(b) A differential in wages between employees is based in good faith on factors other than sex.

(3) No employer shall in any manner discriminate in the payment of wages against any employee because the employee has filed a complaint in a proceeding under ORS 652.210 (Definitions for ORS 652.210 to 652.235) to 652.235 (Motion to disallow award of compensatory and punitive damages), or has testified, or is about to testify, or because the employer believes that the employee may testify, in any investigation or proceedings pursuant to ORS 652.210 (Definitions for ORS 652.210 to 652.235) to 652.235 (Motion to disallow award of compensatory and punitive damages) or in a criminal action pursuant to ORS 652.210 (Definitions for ORS 652.210 to 652.235) to 652.235 (Motion to disallow award of compensatory and punitive damages). [1955 c.193 §2]

Note: The amendments to 652.220 (Prohibition of discriminatory wage rates based on sex) by section 2, chapter 197, Oregon Laws 2017, become operative January 1, 2019. See section 14, chapter 197, Oregon Laws 2017. The text that is operative on and after January 1, 2019, is set forth for the user’s convenience.

652.220 (Prohibition of discriminatory wage rates based on sex). (1) It is an unlawful employment practice under ORS chapter 659A for an employer to:

(a) In any manner discriminate between employees on the basis of a protected class in the payment of wages or other compensation for work of comparable character.

(b) Pay wages or other compensation to any employee at a rate greater than that at which the employer pays wages or other compensation to employees of a protected class for work of comparable character.

(c) Screen job applicants based on current or past compensation.

(d) Determine compensation for a position based on current or past compensation of a prospective employee. This paragraph is not intended to prevent an employer from considering the compensation of a current employee of the employer during a transfer, move or hire of the employee to a new position with the same employer.

(2) Notwithstanding subsection (1) of this section, an employer may pay employees for work of comparable character at different compensation levels if all of the difference in compensation levels is based on a bona fide factor that is related to the position in question and is based on:

(a) A seniority system;

(b) A merit system;

(c) A system that measures earnings by quantity or quality of production, including piece-rate work;

(d) Workplace locations;

(e) Travel, if travel is necessary and regular for the employee;

(f) Education;

(g) Training;

(h) Experience; or

(i) Any combination of the factors described in this subsection, if the combination of factors accounts for the entire compensation differential.

(3) An employer may not in any manner discriminate in the payment of wages or other compensation against any employee because the employee has filed a complaint under ORS 659A.820 (Complaints) or in a proceeding under ORS 652.210 (Definitions for ORS 652.210 to 652.235) to 652.235 (Motion to disallow award of compensatory and punitive damages) or 659A.885 (Civil action) or has testified, or is about to testify, or because the employer believes that the employee may testify, in any investigation or proceedings pursuant to ORS 652.210 (Definitions for ORS 652.210 to 652.235) to 652.235 (Motion to disallow award of compensatory and punitive damages), 659A.830 (Authority of commissioner) or 659A.885 (Civil action) or in a criminal action pursuant to ORS 652.210 (Definitions for ORS 652.210 to 652.235) to 652.235 (Motion to disallow award of compensatory and punitive damages).

(4) An employer may not reduce the compensation level of an employee to comply with the provisions of this section.

(5) Amounts owed to an employee because of the failure of the employer to comply with the requirements of this section are unpaid wages.

(6) An employee who asserts a violation under this section may file a complaint with the Commissioner of the Bureau of Labor and Industries under ORS 659A.820 (Complaints), a civil action under ORS 652.230 (Employee right of action against employer for unpaid wages and damages) or a civil action under 659A.885 (Civil action).

(7) An employer shall post a notice of the requirements of this section in every establishment where employees work. The Bureau of Labor and Industries shall make available to employers a template that meets the required notice provisions of this section.

Notes of Decisions

Ac­tion on behalf of alleged class of employes of defendant telephone company alleging sex discrimina­tion in wage rates and retaliatory acts after administrative discrimina­tion complaints were filed raised issues of statutory construc­tion more appropriately resolved by state courts. Forsberg v. Pacific Northwest Bell Telephone Co., 623 F Supp 117 (1985)

To make prima facie case that wages were paid at rate less than rate paid to opposite sex, plaintiffs had to show merely that they were performing work comparable to that of male teachers and were paid less than male teachers and did not have burden of proving pay differential was based on sex. Smith v. Bull Run School District No. 45, 80 Or App 226, 722 P2d 27 (1986), Sup Ct review denied

Law Review Cita­tions

20 WLR 261 (1984)

Notes of Decisions

Where employer was charged with crim­i­nal viola­tion of Massachusetts pay­ment of wages statute for failing to pay discharged employees for their unused vaca­tion time, employer’s policy of paying discharged employees for unused vaca­tion time was not “employee welfare benefits plan” under sec­tion 3 (1) of Employee Retire­ment Income Security Act of 1974 (ERISA) and crim­i­nal ac­tion to enforce that policy is therefore not foreclosed by sec­tion 514 (a) of ERISA. Massachusetts v. Morash, 490 U.S. 107, 109 S. Ct. 1668, 104 L.Ed 98 (1989)

It is unnecessary to imply private right of ac­tion for employee against secured creditor in pos­ses­sion under ORS 652.310 (Definitions of employer and employee) to 652.405 (Disposition of wages collected by commissioner when payment cannot be made to person entitled thereto) when to do so would render pro­vi­sions of ORS 652.110 (Method of paying employees) to 652.250 (Public employee’s wages as affected by absence to engage in search or rescue operation) superfluous. Stout v. Citicorp Industrial Credit, Inc., 102 Or App 637, 796 P2d 373 (1990), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 652—Hours; Wages; Wage Claims; Records, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors652.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 652, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano652.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.