Or. Admin. R. 839-005-0315 - Discrimination Theories: Career Schools
(1) Intentional Unlawful Discrimination:
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 voluntary, court-ordered affirmative action plan (OAR
839-005-0013(3))
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
substantial 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) Harassment based on an individual's
protected class is a type of intentional unlawful discrimination.
(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 performance or creating an
intimidating, hostile or offensive environment;
(B) Submission to such conduct is made either
explicitly or implicitly a term or condition of enrollment; or
(C) Submission to or rejection of such
conduct is used as the basis for enrollment decisions affecting that
individual.
(b) The
standard for determining whether harassment is sufficiently severe or pervasive
to create a hostile, intimidating or offensive environment is whether a
reasonable person in the circumstances of the complaining individual would so
perceive it.
(3) 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.
(4) Reasonable
Accommodation of Religion: A career school must reasonably accommodate a
student's or applicant's religious belief, observance or practice unless the
career school can demonstrate that such accommodation would cause it undue
hardship.
Notes
Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 345.240, 345.120 & 345.060
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