It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
“Discrimination” in employment means that an employer
or an employment agency or a labor organization is not treating all
similarly situated qualified employees or applicants or members equally.
However, not all discriminatory actions are against the law. Where
employment is concerned, in Oregon, as in most states, most employer-employee
relationships are “at-will.” This means that the employer
is free to hire, discipline, or fire any employee at any time and for
any reason unless that reason is contrary to an agreement, or unlawful
under state, federal or local law, or contrary to public policy. (Similarly,
subject to some exceptions, an employee can quit at any time for any
reason.)
Most unlawful reasons for termination fall into one of two categories.
The first is discrimination against someone who is a member of a “protected
group or class.” Examples of protected groups are racial and
ethnic minorities, the elderly (or any particular age group), and groups
defined by religion, gender, age and disability. The second type of
unlawful discrimination is based on “protected activities,” such
as making a workers’ compensation claim, serving on a jury, or
reporting an illegal action of the employer.
Discriminatory actions in employment can happen at any stage in the
employment cycle where the employer makes some personnel decision,
including the decision whether to hire an employee. If the employer’s
decision is based upon race, color, gender, sexual orientation, national
origin, religion, age, marital status, family status or mental or physical
disability, a claim for discrimination may exist.
Another form of discrimination can occur when an employer sets standards
that appear to be fair and are applied to everyone, but have a statistically
disproportionate impact upon a protected group. For example, refusing
to take applications from anyone less than 5’7” tall or
requiring that all applicants have a high school diploma, may violate
the law, if those requirements have a disproportionate or unequal impact
upon protected groups. The practices may be justified only if they
are reasonably necessary to conduct the employer’s business.
Differences in pay based upon sex, race, color, religion, national
origin, disability or age are against the law. There are also specific
laws relating to gender disparities in compensation. The Federal Equal
Pay Act and Oregon law both require that employees performing substantially
similar jobs under similar working conditions requiring equal skill,
effort and responsibility, must be paid equally regardless of sex.
Differences in pay may be based upon a bona fide seniority system,
merit system, differences in productivity, and many other factors unrelated
to a person’s sex. An employee also may have a wage discrimination
claim if there is evidence that sex was a factor in determining wages,
even if the employee cannot prove equality of skill, effort and responsibility,
or substantial similarity of jobs as required by the Equal Pay Act.
Other laws prohibit discrimination in the “terms or conditions” of
employment and offer a remedy for wage discrimination on bases other
than gender.
Discrimination against employees based on a disability is against state
and federal laws. A disability is one or more physical or mental impairments
that substantially limit one or more major life activities; a record
of such impairment; or the employer’s mistaken perception that
the employee has such an impairment. If an individual with a disability
is qualified and can perform the essential functions of the job with
or without a reasonable accommodation and requests reasonable accommodation
of his or her disability, the employer must attempt to find a reasonable
accommodation for the employee, ideally through an “interactive
process.” “Reasonable accommodation” can include
wheelchair access, schedule changes, policy modifications, or reassignments
of job duties. An employer does not have to reasonably accommodate
an individual with a disability if this would cause the employer undue
hardship. The same laws require employee medical information to be
kept in confidence and severely limit the kinds of medical inquiries
that can be made before offering a job or after the employee has begun
work. An employer may legally inquire into an applicant’s ability
to perform job-related functions, if the inquiry is narrowly tailored.
For example, the employer may describe or demonstrate the job function
and inquire whether the applicant can perform that function with or
without reasonable accommodation.
Pregnant employees are entitled to the same benefits offered other
employees who have similarly disabling conditions. It is also unlawful
to discriminate against employees who have taken leaves approved by
the Family and Medical Leave Act and the Oregon Family Leave Act.
The law also requires employers to make reasonable accommodations for
religious beliefs and practices if it would not cause undue hardship
to the company. An example would be time off for religious observances.
Accommodations also are appropriate when an employee’s religious
beliefs prohibit his or her financial support of labor organizations.
The federal Age Discrimination in Employment Act protects applicants
and employees who are 40 and older. The federal law prohibits discrimination
in hiring, promotions, wages, terminations, layoffs and other terms
and conditions of employment. Forced retirement may violate the federal
Age Act. Oregon state law protects all persons who are 18 and older
from discrimination on the basis of age.
Oregon law prohibits discrimination because an employee has filed a
workers’ compensation claim, testified in a workers’ compensation
hearing, or in some way has participated in the workers’ compensation
system. An employer may not reject a job applicant for past workers’ compensation
claims and should not even ask about the applicant’s workers’ compensation
history. An injured worker has extensive rights to reinstatement to
the original position of employment or reemployment to available and
suitable work.
Oregon law prohibits discrimination based on membership in certain
classes not protected by federal law. For example, Oregon law prohibits
discrimination based on marital status, sexual orientation, whether
the employee has an expunged juvenile record or the employee has had
a garnishment of wages.
Oregon and federal laws provide that the victim of unlawful employment
discrimination may recover lost wages and benefits as well as emotional
distress and possible punitive damages. A victim of unlawful discrimination
does have to try to find other work. If the employee’s claim
is successful, the employer may be ordered to pay some or all of the
employee’s reasonable legal fees. The laws permit a prevailing
party to recover fees in most instances; that means that a successful
employer may also be able to recover fees and costs, although typically
the employer must prove the claim was frivolous or unreasonable. In
some claims such as a federal Equal Pay, Family and Medical Leave Act,
or federal age discrimination case, the victim may recover double the
amount of lost wages.
Most Oregon laws against discrimination in employment are administered
by the Civil Rights Division of the Oregon Bureau of Labor and Industries.
Employees or applicants who believe they have been subjected to illegal
conduct may proceed directly to court or to the Civil Rights Division
of the Oregon Bureau of Labor and Industries. Information is also available
online at www.Oregon.gov.
Most federal laws against discrimination are administered by the Equal
Employment Opportunity Commission (EEOC). An employee claiming discrimination
under federal laws administered by that agency must file a timely charge
of discrimination with the EEOC before going to court. The closest
office of the EEOC is in Seattle, Wash.. The agency also has a website
at www.eeoc.gov. Other federal discrimination claims are handled
by the U.S. Department of Labor Wage and Hour Division, which has a
Portland office and is available at www.dol.gov
If the employer performs work on federal contracts or subcontracts
and is subject to affirmative action requirements, the responsible
agency is the federal Office of Federal Contract Compliance Programs, www.dol.gov/esa/ofccp.
It has a Portland office as well.
Failure to file a claim with the appropriate state or federal agency
within the short time periods determined by law, some as short as 30
days following an act of discrimination, may prevent employees from
pursuing any remedy against the employer. Employees wishing to investigate
claims should seek counsel quickly. Employers responding to claims
should be sure to become aware of filing deadlines.
Legal editor: Paula A. Barran, June 2008