2017 ORS 659A.142¹
Discrimination against individual with disability by employment agency, labor organization, place of public accommodation or state government prohibited
  • mental disorder treatment not evidence of inability to manage property

(1) As used in this section, “state government” has the meaning given that term in ORS 174.111 (“State government” defined).

(2) It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise discriminate against, any individual because that individual has a disability, or to classify or refer for employment any individual because that individual has a disability.

(3) It is an unlawful employment practice for a labor organization, because an individual has a disability, to exclude or to expel from its membership such individual or to discriminate in any way against such individual.

(4) It is an unlawful practice for any place of public accommodation, resort or amusement as defined in ORS 659A.400 (Place of public accommodation defined), or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability.

(5)(a) It is an unlawful practice for state government to exclude an individual from participation in or deny an individual the benefits of the services, programs or activities of state government or to make any distinction, discrimination or restriction because the individual has a disability.

(b) Paragraph (a) of this subsection is intended to ensure equal access to available services, programs and activities of state government.

(c) Paragraph (a) of this subsection is not intended to:

(A) Create an independent entitlement to any service, program or activity of state government; or

(B) Require state government to take any action that state government can demonstrate would result in a fundamental alteration in the nature of a service, program or activity of state government or would result in undue financial or administrative burdens on state government.

(6) Receipt or alleged receipt of treatment for a mental disorder does not constitute evidence of an individual’s inability to acquire, rent or maintain property. [Formerly 659.425; 2003 c.254 §3; 2007 c.70 §297; 2009 c.508 §14]

(formerly 659.280 to 659.290)

Law Review Cita­tions

26 WLR 394-395 (1990)

Notes of Decisions

Termina­tion of employ­ment in retalia­tion for invoking Oregon Family Leave Act rights constitutes wrongful discharge in viola­tion of public policy. Yeager v. Providence Health System Oregon, 195 Or App 134, 96 P3d 862 (2004), Sup Ct review denied

(formerly 659.425)

Notes of Decisions

This sec­tion imposes upon employer obliga­tion not to reject prospective employe because of physical or mental handicap, unless there is, because of the defect, probability either that employe cannot do job in satisfactory manner or that he can do so only at risk of incapacitating himself. Montgomery Ward v. Bureau of Labor, 280 Or 163, 570 P2d 76 (1977)

In determining whether a particular handicap prevents performance of work involved, applicable standard is “probability of incapacita­tion” and it is to be determined at time of rejec­tion and not on the basis of increased risk of incapacita­tion in future. Pacific Motor Trucking Co. v. Bureau of Labor, 64 Or App 361, 668 P2d 446 (1983), Sup Ct review denied

Private transporta­tion company is prohibited by this sec­tion from refusing transporta­tion to individual because of confine­ment to wheelchair. Bush v. Greyhound Lines, Inc., 295 Or 619, 669 P2d 324 (1983)

Count I of complaint alleging that plaintiff had record of diabetes, high blood pressure and obesity was correctly dismissed where plaintiff failed to allege that condi­tions substantially limited him in major life ac­tivity; count II alleging same condi­tions and that defendant “regarded plaintiff as having an impair­ment that would prevent him from being employed” states cause of ac­tion under paragraph (1)(c) of this sec­tion. Devaux v. State of Oregon, 68 Or App 322, 681 P2d 156 (1984)

Under [former] ORS 659.400, employ­ment is major life ac­tivity and it was clear that, because of his color vision, plaintiff’s employ­ment opportunity in engine service with railroad had been limited. Quinn v. Southern Pacific Transporta­tion Co., 76 Or App 617, 711 P2d 139 (1985), Sup Ct review denied

Employe, suffering from diabetic and hyperthyroid condi­tion, was, under facts of case, not discharged in response to his disability but in response to the uncontrollable behavior that resulted therefrom and employer had reasonable basis to conclude that employe could not perform his job duties without probability of harm to himself and others. Pannel v. Wanke Panel Co., 618 F Supp 41 (1985)

Where, under preponderance of evidence, there was no reasonable probability employe was unable to perform work duties, employ­ment discharge because of physical impair­ment was unlawful employ­ment practice under this sec­tion. Brown v. City of Portland, 80 Or App 464, 722 P2d 1282 (1986), Sup Ct review denied

Although defendants had af­firm­a­tive duty pursuant to this sec­tion to make “reasonable accommoda­tion” for plaintiff’s physical impair­ment, they did not violate this duty by failing to allow plaintiff to permanently occupy one of limited number of rotating posi­tions because to do so would have imposed “undue hardship” on program involved. Blumhagen v. Clackamas County, 91 Or App 510, 756 P2d 650 (1988), Sup Ct review denied

This sec­tion, which makes firing employe because of physical impair­ment unlawful where with reasonable accommoda­tion by employer individual could perform work involved was not inextricably intertwined with considera­tion of terms in labor contract and created mandatory and independent state right not preempted by sec­tion 301 of Labor Manage­ment Rela­tions Act. Miller v. AT&T Network Systems, 850 F2d 543 (1988)

Where handicapped employee brought ac­tion against employer under California Fair Employ­ment and Housing Act for illegal discharge, claim not preempted by Sec­tion 301 of Labor Manage­ment Rela­tions Act because claim does not require interpreta­tion of collective bargaining agree­ment. Ackerman v. Western Elec. Co., Inc., 860 F2d 1514 (9th Cir. 1988)

Employer violates this sec­tion if it discriminates against employee on basis of what it perceives to be impair­ment that substantially limits major life ac­tivity and employee does not actually have condi­tion perceived. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 780 P2d 743 (1989), Sup Ct review denied

Where plaintiff alleged that her pregnancy did not impair her ability to do her job but that employer regarded it as such an impair­ment, plaintiff did not fail to state claim. Melvin v. Kim’s Restaurant, Inc., 308 Or 177, 776 P2d 1286 (1989)

Where there was reasonable probability that employee was unable to perform work duties without endangering himself or others, employer did not commit unlawful employ­ment practice by discharging him because of mental impair­ment. Welch v. Champion Interna­tional Corp., 101 Or App 511, 791 P2d 152 (1990)

Employer is not re­quired to accommodate employee’s physical or mental impair­ment due to alcoholism, if employee denies such impair­ment. Braun v. American Interna­tional Health, 315 Or 460, 846 P2d 1151 (1993)

Claims based on failure to make reasonable accommoda­tion are subject to govern­ment liability limita­tions of [former] ORS 30.270. Griffin v. Tri-Met, 318 Or 500, 870 P2d 808 (1994)

“Employ­ment” refers to specific posi­tion or job, not entire profession or job classifica­tion. Anglin v. Dept. of Correc­tions, 160 Or App 463, 982 P2d 547 (1999), Sup Ct review denied

Law Review Cita­tions

16 WLR 541 (1979); 22 WLR 529, 532 (1986); 23 WLR 529, 578 (1987)

1 Legislative Counsel Committee, CHAPTER 659A—Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions; Administrative and Civil Enforcement, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors659A.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 659A, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano659A.­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.