2017 ORS 659A.885¹
Civil action

(1) Any person claiming to be aggrieved by an unlawful practice specified in subsection (2) of this section may file a civil action in circuit court. In any action under this subsection, the court may order injunctive relief and any other equitable relief that may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay. A court may order back pay in an action under this subsection only for the two-year period immediately preceding the filing of a complaint under ORS 659A.820 (Complaints) with the Commissioner of the Bureau of Labor and Industries, or if a complaint was not filed before the action was commenced, the two-year period immediately preceding the filing of the action. In any action under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal. Except as provided in subsection (3) of this section:

(a) The judge shall determine the facts in an action under this subsection; and

(b) Upon any appeal of a judgment in an action under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (3).

(2) An action may be brought under subsection (1) of this section alleging a violation of ORS 10.090 (Prohibited acts by employers against jurors), 10.092 (Insurance coverage for employee during jury service), 25.337 (Liability), 25.424 (Liability of withholder), 171.120 (Purpose of ORS 171.120 to 171.125), 408.230 (Veterans’ preference in public employment), 408.237 (Interviews of veteran applicants for public service position required) (2), 475B.281 (Whistleblower protection for employees), 476.574 (Leave of absence for volunteers), 652.020 (Maximum working hours in certain industries), 652.355 (Prohibition of discrimination because of wage claim or refusal to work additional hours), 653.060 (Discharging or discriminating against employee prohibited), 653.263 (Overtime for persons employed by seafood processors), 653.265 (Overtime for persons employed in canneries, driers and packing plants), 653.547 (Definitions), 653.549 (Rules), 653.601 (Definitions for ORS 653.601 to 653.661) to 653.661 (Preemption), 659.852 (Retaliation against student prohibited), 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited), 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.063 (State to continue group health benefits for injured worker and covered dependents), 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.088 (Violation of ORS 659A.086 as unlawful employment practice), 659A.103 (Policy) to 659A.145 (Discrimination against individual with disability in real property transactions prohibited), 659A.150 (Definitions for ORS 659A.150 to 659A.186) to 659A.186 (Exclusivity of provisions), 659A.194 (Denying leave to employee prohibited), 659A.199 (Prohibited conduct by employer), 659A.203 (Prohibited conduct by public or nonprofit employer), 659A.218 (Disclosure of employee’s name without consent prohibited), 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) to 659A.262 (Warrant on behalf of person entitled to access to housing), 659A.277 (Denying leave to employee prohibited), 659A.290 (Prohibited conduct by employer), 659A.300 (Requiring breathalyzer, polygraph, psychological stress or brain-wave test or genetic test prohibited), 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.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.355 (Discrimination based on wage inquiry or wage complaint) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited).

(3) In any action under subsection (1) of this section alleging a violation of ORS 25.337 (Liability), 25.424 (Liability of withholder), 653.547 (Definitions), 653.549 (Rules), 659.852 (Retaliation against student prohibited), 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited), 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.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.103 (Policy) to 659A.145 (Discrimination against individual with disability in real property transactions prohibited), 659A.199 (Prohibited conduct by employer), 659A.203 (Prohibited conduct by public or nonprofit employer), 659A.228 (Discrimination for reporting violation of election laws prohibited), 659A.230 (Discrimination for initiating or aiding in criminal or civil proceedings prohibited), 659A.250 (Definitions for ORS 659A.250 to 659A.262) to 659A.262 (Warrant on behalf of person entitled to access to housing), 659A.290 (Prohibited conduct by employer), 659A.318 (Discrimination relating to academic degree in theology or religious occupations prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited):

(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $200, whichever is greater, and punitive damages;

(b) At the request of any party, the action shall be tried to a jury;

(c) Upon appeal of any judgment finding a violation, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (1); and

(d) Any attorney fee agreement shall be subject to approval by the court.

(4) In any action under subsection (1) of this section alleging a violation of ORS 652.355 (Prohibition of discrimination because of wage claim or refusal to work additional hours) or 653.060 (Discharging or discriminating against employee prohibited), the court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $200, whichever is greater.

(5) In any action under subsection (1) of this section alleging a violation of ORS 171.120 (Purpose of ORS 171.120 to 171.125), 476.574 (Leave of absence for volunteers) or 659A.218 (Disclosure of employee’s name without consent prohibited), the court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $250, whichever is greater.

(6) In any action under subsection (1) of this section alleging a violation of ORS 10.090 (Prohibited acts by employers against jurors) or 10.092 (Insurance coverage for employee during jury service), the court may award, in addition to the relief authorized under subsection (1) of this section, a civil penalty in the amount of $720.

(7) Any individual against whom any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age, if the individual is 18 years of age or older, has been made by any place of public accommodation, as defined in ORS 659A.400 (Place of public accommodation defined), by any employee or person acting on behalf of the place or by any person aiding or abetting the place or person in violation of ORS 659A.406 (Aiding or abetting certain discrimination prohibited) may bring an action against the operator or manager of the place, the employee or person acting on behalf of the place or the aider or abettor of the place or person. Notwithstanding subsection (1) of this section, in an action under this subsection:

(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory and punitive damages;

(b) The operator or manager of the place of public accommodation, the employee or person acting on behalf of the place, and any aider or abettor shall be jointly and severally liable for all damages awarded in the action;

(c) At the request of any party, the action shall be tried to a jury;

(d) The court shall award reasonable attorney fees to a prevailing plaintiff;

(e) The court may award reasonable attorney fees and expert witness fees incurred by a defendant who prevails only if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim or no reasonable basis for appealing an adverse decision of a trial court; and

(f) Upon any appeal of a judgment under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (1).

(8) When the commissioner or the Attorney General 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 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or federal housing law, or that a group of persons has been denied any of the rights protected by ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or federal housing law, the commissioner or the Attorney General may file a civil action on behalf of the aggrieved persons in the same manner as a person or group of persons may file a civil action under this section. In a civil action filed under this subsection, the court may assess against the respondent, in addition to the relief authorized under subsections (1) and (3) of this section, a civil penalty:

(a) In an amount not exceeding $50,000 for a first violation; and

(b) In an amount not exceeding $100,000 for any subsequent violation.

(9) In any action under subsection (1) of this section alleging a violation of ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or alleging discrimination under federal housing law, when the commissioner is pursuing the action on behalf of an aggrieved complainant, the court shall award reasonable attorney fees to the commissioner if the commissioner prevails in the action. The court may award reasonable attorney fees and expert witness fees incurred by a defendant that prevails in the action if the court determines that the commissioner had no objectively reasonable basis for asserting the claim or for appealing an adverse decision of the trial court.

(10) In an action under subsection (1) or (8) of this section alleging a violation of ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or discrimination under federal housing law:

(a) “Aggrieved person” includes a person who believes that the person:

(A) Has been injured by an unlawful practice or discriminatory housing practice; or

(B) Will be injured by an unlawful practice or discriminatory housing practice that is about to occur.

(b) An aggrieved person in regard to issues to be determined in an action may intervene as of right in the action. The Attorney General may intervene in the action if the Attorney General certifies that the case is of general public importance. The court may allow an intervenor prevailing party costs and reasonable attorney fees at trial and on appeal. [2001 c.621 §15; 2003 c.521 §5; 2003 c.522 §1; 2003 c.572 §21; 2003 c.603 §7; 2003 c.637 §18; 2005 c.199 §1; 2007 c.100 §12; 2007 c.180 §8; 2007 c.278 §3; 2007 c.280 §1; 2007 c.525 §4; 2007 c.903 §13; 2008 c.36 §16; 2009 c.378 §4; 2009 c.478 §3; 2009 c.524 §3; 2010 c.102 §3; 2011 c.118 §4; 2011 c.484 §3; 2013 c.519 §8; 2015 c.307 §3; 2015 c.434 §4; 2015 c.457 §5; 2015 c.537 §18; 2015 c.614 §166; 2016 c.73 §5; 2017 c.685 §12]

Note 1: The amendments to 659A.885 (Civil action) by section 9, chapter 197, Oregon Laws 2017, and section 13, chapter 691, Oregon Laws 2017, become operative January 1, 2019. See section 14, chapter 197, Oregon Laws 2017, and section 16, chapter 691, Oregon Laws 2017. The text that is operative from January 1, 2019, until January 1, 2024, is set forth for the user’s convenience.

659A.885 (Civil action). (1) Any person claiming to be aggrieved by an unlawful practice specified in subsection (2) of this section may file a civil action in circuit court. In any action under this subsection, the court may order injunctive relief and any other equitable relief that may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay. A court may order back pay in an action under this subsection only for the two-year period immediately preceding the filing of a complaint under ORS 659A.820 (Complaints) with the Commissioner of the Bureau of Labor and Industries, or if a complaint was not filed before the action was commenced, the two-year period immediately preceding the filing of the action. In any action under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal. Except as provided in subsection (3) of this section:

(a) The judge shall determine the facts in an action under this subsection; and

(b) Upon any appeal of a judgment in an action under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (3).

(2) An action may be brought under subsection (1) of this section alleging a violation of:

(a) ORS 10.090 (Prohibited acts by employers against jurors), 10.092 (Insurance coverage for employee during jury service), 25.337 (Liability), 25.424 (Liability of withholder), 171.120 (Purpose of ORS 171.120 to 171.125), 408.230 (Veterans’ preference in public employment), 408.237 (Interviews of veteran applicants for public service position required) (2), 475B.281 (Whistleblower protection for employees), 476.574 (Leave of absence for volunteers), 652.020 (Maximum working hours in certain industries), 652.220 (Prohibition of discriminatory wage rates based on sex), 652.355 (Prohibition of discrimination because of wage claim or refusal to work additional hours), 653.060 (Discharging or discriminating against employee prohibited), 653.263 (Overtime for persons employed by seafood processors), 653.265 (Overtime for persons employed in canneries, driers and packing plants), 653.547 (Definitions), 653.549 (Rules), 653.601 (Definitions for ORS 653.601 to 653.661) to 653.661 (Preemption), 659.852 (Retaliation against student prohibited), 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited), 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.063 (State to continue group health benefits for injured worker and covered dependents), 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.088 (Violation of ORS 659A.086 as unlawful employment practice), 659A.103 (Policy) to 659A.145 (Discrimination against individual with disability in real property transactions prohibited), 659A.150 (Definitions for ORS 659A.150 to 659A.186) to 659A.186 (Exclusivity of provisions), 659A.194 (Denying leave to employee prohibited), 659A.199 (Prohibited conduct by employer), 659A.203 (Prohibited conduct by public or nonprofit employer), 659A.218 (Disclosure of employee’s name without consent prohibited), 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) to 659A.262 (Warrant on behalf of person entitled to access to housing), 659A.277 (Denying leave to employee prohibited), 659A.290 (Prohibited conduct by employer), 659A.300 (Requiring breathalyzer, polygraph, psychological stress or brain-wave test or genetic test prohibited), 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.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.355 (Discrimination based on wage inquiry or wage complaint) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited); or

(b) ORS 653.470 (Retaliation prohibited), except an action may not be brought for a claim relating to ORS 653.450 (Employee right to input into work schedule).

(3) In any action under subsection (1) of this section alleging a violation of ORS 25.337 (Liability), 25.424 (Liability of withholder), 652.220 (Prohibition of discriminatory wage rates based on sex), 652.355 (Prohibition of discrimination because of wage claim or refusal to work additional hours), 653.547 (Definitions), 653.549 (Rules), 659.852 (Retaliation against student prohibited), 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited), 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.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.103 (Policy) to 659A.145 (Discrimination against individual with disability in real property transactions prohibited), 659A.199 (Prohibited conduct by employer), 659A.203 (Prohibited conduct by public or nonprofit employer), 659A.228 (Discrimination for reporting violation of election laws prohibited), 659A.230 (Discrimination for initiating or aiding in criminal or civil proceedings prohibited), 659A.250 (Definitions for ORS 659A.250 to 659A.262) to 659A.262 (Warrant on behalf of person entitled to access to housing), 659A.290 (Prohibited conduct by employer), 659A.318 (Discrimination relating to academic degree in theology or religious occupations prohibited), 659A.355 (Discrimination based on wage inquiry or wage complaint) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited):

(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $200, whichever is greater, and punitive damages;

(b) At the request of any party, the action shall be tried to a jury;

(c) Upon appeal of any judgment finding a violation, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (1); and

(d) Any attorney fee agreement shall be subject to approval by the court.

(4) Notwithstanding ORS 31.730 (Standards for award of punitive damages), in an action under subsection (1) of this section alleging a violation of ORS 652.220 (Prohibition of discriminatory wage rates based on sex), the court may award punitive damages if:

(a) It is proved by clear and convincing evidence that an employer has engaged in fraud, acted with malice or acted with willful and wanton misconduct; or

(b) An employer was previously adjudicated in a proceeding under this section or under ORS 659A.850 (Hearing) for a violation of ORS 652.220 (Prohibition of discriminatory wage rates based on sex).

(5) In any action under subsection (1) of this section alleging a violation of ORS 653.060 (Discharging or discriminating against employee prohibited), the court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $200, whichever is greater.

(6) In any action under subsection (1) of this section alleging a violation of ORS 171.120 (Purpose of ORS 171.120 to 171.125), 476.574 (Leave of absence for volunteers) or 659A.218 (Disclosure of employee’s name without consent prohibited), the court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $250, whichever is greater.

(7) In any action under subsection (1) of this section alleging a violation of ORS 10.090 (Prohibited acts by employers against jurors) or 10.092 (Insurance coverage for employee during jury service), the court may award, in addition to the relief authorized under subsection (1) of this section, a civil penalty in the amount of $720.

(8) Any individual against whom any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age, if the individual is 18 years of age or older, has been made by any place of public accommodation, as defined in ORS 659A.400 (Place of public accommodation defined), by any employee or person acting on behalf of the place or by any person aiding or abetting the place or person in violation of ORS 659A.406 (Aiding or abetting certain discrimination prohibited) may bring an action against the operator or manager of the place, the employee or person acting on behalf of the place or the aider or abettor of the place or person. Notwithstanding subsection (1) of this section, in an action under this subsection:

(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory and punitive damages;

(b) The operator or manager of the place of public accommodation, the employee or person acting on behalf of the place, and any aider or abettor shall be jointly and severally liable for all damages awarded in the action;

(c) At the request of any party, the action shall be tried to a jury;

(d) The court shall award reasonable attorney fees to a prevailing plaintiff;

(e) The court may award reasonable attorney fees and expert witness fees incurred by a defendant who prevails only if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim or no reasonable basis for appealing an adverse decision of a trial court; and

(f) Upon any appeal of a judgment under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (1).

(9) When the commissioner or the Attorney General 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 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or federal housing law, or that a group of persons has been denied any of the rights protected by ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or federal housing law, the commissioner or the Attorney General may file a civil action on behalf of the aggrieved persons in the same manner as a person or group of persons may file a civil action under this section. In a civil action filed under this subsection, the court may assess against the respondent, in addition to the relief authorized under subsections (1) and (3) of this section, a civil penalty:

(a) In an amount not exceeding $50,000 for a first violation; and

(b) In an amount not exceeding $100,000 for any subsequent violation.

(10) In any action under subsection (1) of this section alleging a violation of ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or alleging discrimination under federal housing law, when the commissioner is pursuing the action on behalf of an aggrieved complainant, the court shall award reasonable attorney fees to the commissioner if the commissioner prevails in the action. The court may award reasonable attorney fees and expert witness fees incurred by a defendant that prevails in the action if the court determines that the commissioner had no objectively reasonable basis for asserting the claim or for appealing an adverse decision of the trial court.

(11) In an action under subsection (1) or (9) of this section alleging a violation of ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or discrimination under federal housing law:

(a) “Aggrieved person” includes a person who believes that the person:

(A) Has been injured by an unlawful practice or discriminatory housing practice; or

(B) Will be injured by an unlawful practice or discriminatory housing practice that is about to occur.

(b) An aggrieved person in regard to issues to be determined in an action may intervene as of right in the action. The Attorney General may intervene in the action if the Attorney General certifies that the case is of general public importance. The court may allow an intervenor prevailing party costs and reasonable attorney fees at trial and on appeal.

Note 2: The amendments to 659A.885 (Civil action) by section 10, chapter 197, Oregon Laws 2017, become operative January 1, 2024. See section 13, chapter 197, Oregon Laws 2017. The text that is operative on and after January 1, 2024, is set forth for the user’s convenience.

659A.885 (Civil action). (1) Any person claiming to be aggrieved by an unlawful practice specified in subsection (2) of this section may file a civil action in circuit court. In any action under this subsection, the court may order injunctive relief and any other equitable relief that may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay. A court may order back pay in an action under this subsection only for the two-year period immediately preceding the filing of a complaint under ORS 659A.820 (Complaints) with the Commissioner of the Bureau of Labor and Industries, or if a complaint was not filed before the action was commenced, the two-year period immediately preceding the filing of the action. In any action under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal. Except as provided in subsection (3) of this section:

(a) The judge shall determine the facts in an action under this subsection; and

(b) Upon any appeal of a judgment in an action under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (3).

(2) An action may be brought under subsection (1) of this section alleging a violation of:

(a) ORS 10.090 (Prohibited acts by employers against jurors), 10.092 (Insurance coverage for employee during jury service), 25.337 (Liability), 25.424 (Liability of withholder), 171.120 (Purpose of ORS 171.120 to 171.125), 408.230 (Veterans’ preference in public employment), 408.237 (Interviews of veteran applicants for public service position required) (2), 475B.281 (Whistleblower protection for employees), 476.574 (Leave of absence for volunteers), 652.020 (Maximum working hours in certain industries), 652.220 (Prohibition of discriminatory wage rates based on sex), 652.355 (Prohibition of discrimination because of wage claim or refusal to work additional hours), 653.060 (Discharging or discriminating against employee prohibited), 653.263 (Overtime for persons employed by seafood processors), 653.265 (Overtime for persons employed in canneries, driers and packing plants), 653.547 (Definitions), 653.549 (Rules), 653.601 (Definitions for ORS 653.601 to 653.661) to 653.661 (Preemption), 659.852 (Retaliation against student prohibited), 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited), 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.063 (State to continue group health benefits for injured worker and covered dependents), 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.088 (Violation of ORS 659A.086 as unlawful employment practice), 659A.103 (Policy) to 659A.145 (Discrimination against individual with disability in real property transactions prohibited), 659A.150 (Definitions for ORS 659A.150 to 659A.186) to 659A.186 (Exclusivity of provisions), 659A.194 (Denying leave to employee prohibited), 659A.199 (Prohibited conduct by employer), 659A.203 (Prohibited conduct by public or nonprofit employer), 659A.218 (Disclosure of employee’s name without consent prohibited), 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) to 659A.262 (Warrant on behalf of person entitled to access to housing), 659A.277 (Denying leave to employee prohibited), 659A.290 (Prohibited conduct by employer), 659A.300 (Requiring breathalyzer, polygraph, psychological stress or brain-wave test or genetic test prohibited), 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.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.355 (Discrimination based on wage inquiry or wage complaint), 659A.357 (Restricting salary history inquiries) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited); or

(b) ORS 653.470 (Retaliation prohibited), except an action may not be brought for a claim relating to ORS 653.450 (Employee right to input into work schedule).

(3) In any action under subsection (1) of this section alleging a violation of ORS 25.337 (Liability), 25.424 (Liability of withholder), 652.220 (Prohibition of discriminatory wage rates based on sex), 652.355 (Prohibition of discrimination because of wage claim or refusal to work additional hours), 653.547 (Definitions), 653.549 (Rules), 659.852 (Retaliation against student prohibited), 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited), 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.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.103 (Policy) to 659A.145 (Discrimination against individual with disability in real property transactions prohibited), 659A.199 (Prohibited conduct by employer), 659A.203 (Prohibited conduct by public or nonprofit employer), 659A.228 (Discrimination for reporting violation of election laws prohibited), 659A.230 (Discrimination for initiating or aiding in criminal or civil proceedings prohibited), 659A.250 (Definitions for ORS 659A.250 to 659A.262) to 659A.262 (Warrant on behalf of person entitled to access to housing), 659A.290 (Prohibited conduct by employer), 659A.318 (Discrimination relating to academic degree in theology or religious occupations prohibited), 659A.355 (Discrimination based on wage inquiry or wage complaint), 659A.357 (Restricting salary history inquiries) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited):

(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $200, whichever is greater, and punitive damages;

(b) At the request of any party, the action shall be tried to a jury;

(c) Upon appeal of any judgment finding a violation, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (1); and

(d) Any attorney fee agreement shall be subject to approval by the court.

(4) Notwithstanding ORS 31.730 (Standards for award of punitive damages), in an action under subsection (1) of this section alleging a violation of ORS 652.220 (Prohibition of discriminatory wage rates based on sex), the court may award punitive damages if:

(a) It is proved by clear and convincing evidence that an employer has engaged in fraud, acted with malice or acted with willful and wanton misconduct; or

(b) An employer was previously adjudicated in a proceeding under this section or under ORS 659A.850 (Hearing) for a violation of ORS 652.220 (Prohibition of discriminatory wage rates based on sex).

(5) In any action under subsection (1) of this section alleging a violation of ORS 653.060 (Discharging or discriminating against employee prohibited), the court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $200, whichever is greater.

(6) In any action under subsection (1) of this section alleging a violation of ORS 171.120 (Purpose of ORS 171.120 to 171.125), 476.574 (Leave of absence for volunteers) or 659A.218 (Disclosure of employee’s name without consent prohibited), the court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $250, whichever is greater.

(7) In any action under subsection (1) of this section alleging a violation of ORS 10.090 (Prohibited acts by employers against jurors) or 10.092 (Insurance coverage for employee during jury service), the court may award, in addition to the relief authorized under subsection (1) of this section, a civil penalty in the amount of $720.

(8) Any individual against whom any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age, if the individual is 18 years of age or older, has been made by any place of public accommodation, as defined in ORS 659A.400 (Place of public accommodation defined), by any employee or person acting on behalf of the place or by any person aiding or abetting the place or person in violation of ORS 659A.406 (Aiding or abetting certain discrimination prohibited) may bring an action against the operator or manager of the place, the employee or person acting on behalf of the place or the aider or abettor of the place or person. Notwithstanding subsection (1) of this section, in an action under this subsection:

(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory and punitive damages;

(b) The operator or manager of the place of public accommodation, the employee or person acting on behalf of the place, and any aider or abettor shall be jointly and severally liable for all damages awarded in the action;

(c) At the request of any party, the action shall be tried to a jury;

(d) The court shall award reasonable attorney fees to a prevailing plaintiff;

(e) The court may award reasonable attorney fees and expert witness fees incurred by a defendant who prevails only if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim or no reasonable basis for appealing an adverse decision of a trial court; and

(f) Upon any appeal of a judgment under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (Scope of appellate review) (1).

(9) When the commissioner or the Attorney General 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 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or federal housing law, or that a group of persons has been denied any of the rights protected by ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or federal housing law, the commissioner or the Attorney General may file a civil action on behalf of the aggrieved persons in the same manner as a person or group of persons may file a civil action under this section. In a civil action filed under this subsection, the court may assess against the respondent, in addition to the relief authorized under subsections (1) and (3) of this section, a civil penalty:

(a) In an amount not exceeding $50,000 for a first violation; and

(b) In an amount not exceeding $100,000 for any subsequent violation.

(10) In any action under subsection (1) of this section alleging a violation of ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or alleging discrimination under federal housing law, when the commissioner is pursuing the action on behalf of an aggrieved complainant, the court shall award reasonable attorney fees to the commissioner if the commissioner prevails in the action. The court may award reasonable attorney fees and expert witness fees incurred by a defendant that prevails in the action if the court determines that the commissioner had no objectively reasonable basis for asserting the claim or for appealing an adverse decision of the trial court.

(11) In an action under subsection (1) or (9) of this section alleging a violation of ORS 659A.145 (Discrimination against individual with disability in real property transactions prohibited) or 659A.421 (Discrimination in selling, renting or leasing real property prohibited) or discrimination under federal housing law:

(a) “Aggrieved person” includes a person who believes that the person:

(A) Has been injured by an unlawful practice or discriminatory housing practice; or

(B) Will be injured by an unlawful practice or discriminatory housing practice that is about to occur.

(b) An aggrieved person in regard to issues to be determined in an action may intervene as of right in the action. The Attorney General may intervene in the action if the Attorney General certifies that the case is of general public importance. The court may allow an intervenor prevailing party costs and reasonable attorney fees at trial and on appeal.

Notes of Decisions

Under Former Similar Statute (Ors 659.121)

Since ac­tions brought under this sec­tion are equitable in nature, Article I, sec­tion 17 of Oregon Constitu­tion, does not require jury trial. Wincer v. Ind. Paper Stock Co., 48 Or App 859, 618 P2d 15 (1980)

Where telephone company discharged compensably injured employe, she was entitled to bring suit for injunctive relief and was not limited to or re­quired to exhaust remedies provided by collective bargaining agree­ment. Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 611 P2d 281 (1980)

Prevailing defendant in ac­tion pursuant to this sec­tion is entitled to award of attorney fees only if claim is brought in bad faith, is unreasonable or groundless or if plaintiff persists in litigating claim after it becomes evident claim is unreasonable or unfounded. Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981); Turnbow v. K.E. Enterprises, Inc., 155 Or App 59, 962 P2d 764 (1998)

This sec­tion does not abrogate common law tort of wrongful discharge. Holien v. Sears, Roebuck and Co., 66 Or App 911, 677 P2d 704, aff’d 298 Or 76, 689 P2d 1292 (1984); 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)

When plaintiff seeks equitable relief of reinstate­ment, impossibility of reinstate­ment is af­firm­a­tive de­fense and burden of es­tab­lishing it rests on employer. Millsap v. Eugene Care Center, 68 Or App 223, 682 P2d 795 (1984), Sup Ct review denied

On es­tab­lish­ment in Oregon discrimina­tion ac­tions of prima facie case, burden does not shift from plaintiff where issue is simply whether plaintiff’s allega­tion or employer’s denial of discrimina­tion is correct. Callan v. Confed. of Oreg. Sch. Adm., 79 Or App 73, 717 P2d 1252 (1986). But see Livingston v. Fred Meyer Stores, Inc., 567 F. Supp. 2d 1265 (D. Or. 2008)

In civil ac­tion pursuant to this sec­tion, evidence of employe’s abilities to perform work duties at time of discharge is admissible even though in­for­ma­­tion was not unavailable to employer at time of discharge. Brown v. City of Portland, 80 Or App 464, 722 P2d 1282 (1986), Sup Ct review denied

In case brought pursuant to this sec­tion, plaintiff’s failure to include in prayer request for injunc­tion did not mean that he had failed to allege facts sufficient to state claim. Davis v. Surcamp, 86 Or App 310, 738 P2d 1006 (1987)

In ac­tion brought under this sec­tion, court properly did not limit attorney fees on basis of contingency fee agree­ment, but determined independently that amount it assessed was reasonable. Cook v. Coos-Curry Electric Cooperative, Inc., 86 Or App 600, 740 P2d 201 (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)

Defini­tion of “tort” contained in ORS 30.260 (Definitions for ORS 30.260 to 30.300) applied to claim under this sec­tion and plaintiff was re­quired to plead notice under Oregon Tort Claims Act. Brinkley v. Oregon Health Sciences University, 94 Or App 531, 766 P2d 1045 (1988), Sup Ct review denied

Exclusivity pro­vi­sion of ORS 656.018 (Effect of providing coverage) does not apply to employ­ment discrimina­tion injuries. Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (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)

This pro­vi­sion provides adequate remedies and excludes common law remedies. Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990)

Where one of three claims brought pursuant to this pro­vi­sion is still pending in trial court, trial court must deny request for attorney fees. Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990)

Unlawful employ­ment practices claim by employee alleging racial discrimina­tion and one year statute of limita­tions began to accrue on date employee was denied promo­tion, since harm occurs whether or not posi­tion is ever filled by an­oth­er per­son. Cortez v. State of Oregon, 121 Or App 602, 855 P2d 1154 (1993), Sup Ct review denied

Plaintiff’s ability to bring wrongful discharge ac­tion based on resistance to discrimina­tion does not depend on form of discrimina­tion. Goodlette v. LTM, Inc., 128 Or App 62, 874 P2d 1354 (1994)

Victim is not re­quired to prove reasonable effort was made to resolve conflict in order to obtain injunctive relief. Ballinger v. Klamath Pacific Corp., 135 Or App 438, 898 P2d 232 (1995), Sup Ct review denied

At-will employee may claim for loss of future earnings and fringe benefits as part of compensatory damages. Wooton v. Viking Distributing Co., Inc., 136 Or App 56, 899 P2d 1219 (1995), Sup Ct review denied; Tadsen v. Praegitzer Industries, Inc., 136 Or App 247, 902 P2d 586 (1995), aff’d 324 Or 465, 928 P2d 980 (1996)

Oregon Tort Claims Act precludes award of punitive damages for unlawful employ­ment practice by govern­ment body. Faro v. Highway Division, 143 Or App 388, 923 P2d 1298 (1996), modified144 Or App 399, 927 P2d 623 (1996), aff’d 326 Or 317, 951 P2d 716 (1998)

“Occurrence” commencing running of statute of limita­tions is unlawful con­duct or practice, not discovery by employee. Huff v. Great Western Seed Co., 322 Or 457, 909 P2d 858 (1996)

Standard of proof for damages in claim of future lost pay and benefits is reasonable probability. Tadsen v. Praegitzer Industries, Inc., 324 Or 465, 928 P2d 980 (1996)

Compensatory damages for front or back pay are not recoverable against coworkers. Schram v. Albertson’s, Inc., 146 Or App 415, 934 P2d 483 (1997)

This sec­tion, in pari materia with ORS 20.075 (Factors to be considered by court in awarding attorney fees), permits court to adopt discre­tionary rule that awards attorney fees to defendant in unlawful employ­ment ac­tion only if ac­tion is frivolous. McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200 (1998), clarified 327 Or 185, 957 P2d 1200 (1998)

To qualify as prevailing party, plaintiff must succeed on significant issue that achieves at least some of benefit plaintiff sought in bringing suit. Siverly v. Young and Morgan Trucking Co., 172 Or App 282, 17 P3d 579 (2001)

In determining whether plaintiff’s claim was frivolous, unreasonable or without founda­tion, so as to justify award of attorney fees, court may give considera­tion both to merits of claim and to procedural or substantive develop­ments during litiga­tion. McCarthy v. Oregon Freeze Dry, Inc., 334 Or 77, 46 P3d 721 (2002)

Amount of award for viola­tion of whistleblower law (ORS 659A.203 (Prohibited conduct by public or nonprofit employer)) by govern­mental entity is subject to Oregon Tort Claims Act limit on liability in [former] ORS 30.270. Rabkin v. Oregon Health Sciences University, 350 F3d 967 (9th Cir. 2003)

In General

Prevailing defendant may recover attorney fees only if plaintiff brought claim in bad faith or if claim was unfounded or unreasonable. Chase v. Vernam, 199 Or App 129, 110 P3d 128 (2005)

Plaintiff’s claim is not unfounded or unreasonable if, viewed in light most favorable to plaintiff, plaintiff presented evidence that, if believed, could reasonably lead factfinder to find that ele­ments necessary to constitute claim had been es­tab­lished. Chase v. Vernam, 199 Or App 129, 110 P3d 128 (2005)

Where ac­tion is adjudicated in federal court, after plaintiff es­tab­lishes prima facie case for Oregon discrimina­tion ac­tion, burden of proof shifts to defendant to es­tab­lish legitimate, nondiscriminatory reason for adverse employ­ment ac­tion. Livingston v. Fred Meyer Stores, Inc., 567 F. Supp. 2d 1265 (D. Or. 2008)

Law Review Cita­tions

Under Former Similar Statute (Ors 659.121)

19 WLR 67 (1983); 31 WLR 179 (1995)

(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

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.