Or. Admin. R. 839-005-0010 - Discrimination Theories: Employment
(1)
Substantial evidence of intentional unlawful discrimination exists if the
division's investigation reveals evidence that a reasonable person would accept
as sufficient to support the following elements:
(b) The aggrieved person is a member of a
protected class;
(c) The aggrieved
person was harmed by an action of the respondent; and
(d) The aggrieved person's protected class
was the motivating factor for the respondent's action. In determining whether
the aggrieved person's protected class was the reason for the respondent's
action, the division uses whichever of the following theories applies:
(A) Specific Intent Theory: The respondent
knowingly and purposefully discriminates against an individual because of that
individual's membership in a protected class, unless the respondent can show
that a bona fide occupational qualification or a bona fide voluntary,
court-ordered affirmative action plan (OAR
839-005-0013) allows the
action.
(B) Different or Unequal
Treatment Theory: The respondent treats members of a protected class
differently than others who are not members of that protected class. When the
respondent makes this differentiation because of the individual's protected
class and not because of legitimate, non-discriminatory reasons, unlawful
discrimination exists. In establishing a case of different or unequal
treatment:
(i) There must be substantial
evidence that the aggrieved person was harmed by an action of the respondent
under circumstances that make it appear that the respondent treated the
aggrieved person differently than comparably situated individuals who were not
members of the aggrieved person's protected class. Substantial evidence of
discrimination exists if the division's investigation reveals evidence that a
reasonable person would accept as sufficient to support that protected class
membership was a motivating factor for the respondent's alleged unlawful
action. If the respondent fails to rebut this evidence with evidence of a
legitimate non-discriminatory reason, the division will conclude that
substantial evidence of unlawful discrimination exists.
(I) Pretext: If the respondent rebuts the
evidence with evidence of a legitimate non-discriminatory reason, but there is
substantial evidence that the respondent's reason is a pretext for
discrimination, the division will conclude there is substantial evidence of
unlawful discrimination.
(II) Mixed
Motive: If the respondent presents substantial evidence that a legitimate,
non-discriminatory reason contributed to the respondent's action, but the
division finds the individual's protected class membership was also a
motivating factor in the respondent's action, the division will determine there
is substantial evidence of discrimination.
(ii) The aggrieved person at all times has
the burden of proving that the aggrieved person's protected class was the
reason for the respondent's unlawful action.
(2) Adverse Impact Discrimination:
Substantial evidence of adverse impact discrimination does not require
establishment of intentional discrimination as provided in (1) of this rule.
Adverse impact discrimination exists if the division's investigation reveals
evidence that a reasonable person would accept as sufficient to support the
following elements:
(b) The respondent has a
standard or policy that is applied equally.
(c) The standard or policy has the effect of
screening out or otherwise affecting members of a protected class at a
significantly higher rate than others who are not members of that protected
class; and
(d) The aggrieved person
is a member of the protected class adversely affected by the respondent's
standard or policy and has been harmed by the respondent's application of the
standard or policy.
(3)
An employer must reasonably accommodate an employee or applicant's religious
belief, observance or practice unless the employer can demonstrate that such
accommodation would cause undue hardship on the employer's business (see OAR
839-005-0140).
(4) Harassment: Harassment based on an
individual's protected class is a type of intentional unlawful discrimination.
In cases of alleged unlawful sexual harassment in employment see OAR
839-005-0030.
(a) Conduct of a verbal or physical nature
relating to protected classes other than sex is unlawful when substantial
evidence of the elements of intentional discrimination, as described in section
(1) of this rule, is shown and:
(A) Such
conduct is sufficiently severe or pervasive to have the purpose or effect of
unreasonably interfering with an individual's work performance or creating an
intimidating, hostile or offensive working environment;
(B) Submission to such conduct is made either
explicitly or implicitly a term or condition of employment; or
(C) Submission to or rejection of such
conduct is used as the basis for employment decisions affecting that
individual.
(b) The
standard for determining whether harassment is sufficiently severe or pervasive
to create a hostile, intimidating or offensive working environment is whether a
reasonable person in the circumstances of the complaining individual would so
perceive it.
(c) Employer Proxy: An
employer is liable for harassment when the harasser's rank is sufficiently high
that the harasser is the employer's proxy, for example, the employer's
president, owner, partner or corporate officer.
(d) Harassment by Supervisor plus Tangible
Employment Action: An employer is liable for harassment by a supervisor with
immediate or successively higher authority over an individual when the
harassment results in a tangible employment action that the supervisor takes or
causes to be taken against the individual. A tangible employment action
includes, but is not limited to, any of the following:
(A) Terminating employment, including
constructive discharge;
(B) Failing
to hire;
(C) Failing to promote;
or
(D) Changing a term or condition
of employment, such as work assignment, work schedule, compensation or benefits
or making a decision that causes a significant change in an employment
benefit.
(e) Harassment
by Supervisor, No Tangible Employment Action: When harassment by a supervisor
with immediate or successively higher authority over the individual is found to
have occurred, but no tangible employment action was taken, the employer is
liable if:
(A) The employer knew of the
harassment, unless the employer took immediate and appropriate corrective
action.
(B) The employer should
have known of the harassment. The division will find that the employer should
have known of the harassment unless the employer can demonstrate:
(i) That the employer exercised reasonable
care to prevent and promptly correct any harassing behavior; and
(ii) That the complaining individual
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to otherwise avoid harm.
(f) Harassment by
Coworkers or Agents: An employer is liable for harassment by the employer's
employees or agents who do not have immediate or successively higher authority
over the complaining individual when the employer knew or should have known of
the conduct, unless the employer took immediate and appropriate corrective
action.
(g) Harassment by
Non-Employees: An employer is liable for harassment by non-employees in the
workplace when the employer or the employer's agents knew or should have known
of the conduct unless the employer took immediate and appropriate corrective
action. In reviewing such cases, the division will consider the extent of the
employer's control and any legal responsibility the employer may have with
respect to the conduct of such non-employees.
(h) Withdrawn Consent: An employer may be
liable for harassment by the employer's supervisory or non-supervisory
employees, agents or non-employees even if the acts complained of were of a
kind previously consented to by the complaining individual, if the employer
knew or should have known that the complaining individual had withdrawn consent
to the offensive conduct.
(i) When
employment opportunities or benefits are granted because of an individual's
submission to an employer's harassment, the employer is liable for unlawful
discrimination against other individuals who were qualified for but denied that
opportunity or benefit.
Notes
Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A
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