Or. Admin. Code § 839-006-0307 - Discrimination Theories: Public Accommodation of Individuals with Disabilities
(1) A violation of
discrimination laws against individuals with disabilities may involve either
intentional or unintentional discrimination. Discrimination against individuals
with disabilities need not be intentional to be unlawful. Unintentional
discrimination may occur in situations involving adverse impact, the failure to
permit reasonable modifications, the refusal to make reasonable accommodations,
the failure to design and construct covered buildings under applicable rules or
the failure to remove physical barriers from facilities as provided in OAR
839-006-0310. To be protected
from discrimination based on disability, an individual must have a disability,
as described in ORS 659A.104 and the relevant rules.
Reasonable modifications in services, programs or activities, provision of
auxiliary aids, services by state government, removal of barriers to
facilities, goods and services and provision of auxiliary aids by public
accommodations are covered by ORS
659A.142 and these
rules.
(2) 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:
(a) The respondent is
a respondent as defined by ORS
659A.001(10)
and OAR 839-005-0003(12)
of these rules;
(b) The complainant
is an individual with a disability;
(c) The complainant was harmed by an action
of the respondent; and
(d) The
complainant's disability was the motivating factor for the respondent's action.
In determining whether the complainant's disability was the motivating factor
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 that individual has a disability.
(B) Different or Unequal Treatment Theory:
The respondent treats individuals with disabilities differently than others who
do not have disabilities. When the respondent makes this differentiation
because of the individual's disability 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 complainant was harmed by an action
of the respondent under circumstances that make it appear that the respondent
treated the complainant differently than comparably situated individuals who do
not have disabilities. Substantial evidence of discrimination exists if the
division's investigation reveals evidence that a reasonable person would accept
as sufficient to support that an individual's disability 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 disability was also a substantial factor in the
respondent's action, the division will determine there is substantial evidence
of discrimination.
(ii)
The complainant at all times has the burden of proving that the complainant's
disability was the motivating factor for the respondent's unlawful
action.
(3) Adverse impact by a place of
accommodation on the basis of disability: Substantial evidence of adverse
impact discrimination does not require establishment of intentional
discrimination as provided in (2) 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:
(a) The respondent is a respondent as defined
by ORS 659A.001(10)
and OAR 839-005-0003(12)
of these rules;
(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 complainant 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)
Harassment by a place of public accommodation on the basis of disability:
(a) Conduct of a verbal or physical nature on
the basis of disability is unlawful when substantial evidence of the elements
of intentional discrimination, as described in section (2) of this rule, is
shown and:
(A) Such conduct is sufficiently
severe or pervasive to have the purpose or effect of creating an intimidating,
hostile or offensive environment; or
(B) Submission to such conduct is made either
explicitly or implicitly a term or condition of public accommodations;
or
(C) Submission to or rejection
of such conduct is used as the basis for 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 individual against whom the
harassment is directed would so perceive it.
Notes
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.103 & 659A.142
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