“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 is 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.) Unlawful discrimination is different treatment based on the applicant’s or employee’s protected class or actions.
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, sexual orientation, gender identity, expunged juvenile records and disability. The second type of unlawful discrimination is based on protected activities, such as making a workers’ compensation claim, serving on a jury, taking protected leave, or reporting an illegal action of the employer.
Discriminatory actions in employment can happen at any stage in the employment cycle when the employer makes some adverse personnel decision, including the decision whether to hire an employee. If the employer’s decision is based upon classifications such as race, color, gender, sexual orientation, national origin, religion, age (18 or over under state law, 40 or older under federal law), marital status, family status, veteran’s status or mental or physical disability, a claim for discrimination may exist. The same is true for adverse personnel decisions based upon protected leave, service in the legislature, opposition to health or safety conditions, garnishments, use of tobacco products while off duty, or testimony in employment department hearings.
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 and are not justified. 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 or other protected classes are also 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. A new Oregon law prohibits disciplining employees for sharing their wage information, which is intended to promote pay transparency and facilitate challenges to unlawful pay disparities.
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. An impairment can be substantially limiting even though it does not prevent, or significantly or severely restrict, an individual from performing a major life activity. If an individual with a disability is qualified and can perform the essential functions of the job with a reasonable accommodation, an employer must usually provide a reasonable accommodation. A reasonable accommodation must not place an undue burden on the employer. If such an employee 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 structural changes such as providing wheelchair access, schedule changes, policy modifications, leave, or reassignments of non-essential job duties. 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, but the inquiry should be 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. A federal law, the Genetic Information Nondiscrimination Act, restricts the kinds of inquiries that employers can make and the information employers may receive about genetic information and family medical history.
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 as well as leave for military obligations, to donate bone marrow, for reasons related to domestic violence or as a result of stalking or sexual assault.
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.
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. There are additional statutory protections for genetic information, brain wave testing, military service, and veterans’ status. A series of state and federal laws protects certain kinds of leave including leave for an employee's own serious health condition and requiring safety accommodations for employees who are victims of domestic violence, harassment, sexual assault or stalking. Recently Oregon added laws requiring employers to give military veterans a day off on Veteran’s Day (with some exceptions) and forbidding employers from requiring or requesting employees or applicants to provide access to their personal social media accounts. The legislature also added statutory protections against harassment and discrimination to interns.
Discrimination laws often follow social developments. Rights may be recognized and protected first at a local level, then a statewide level, then a federal level. In recent years, for example, there have been developments in the protection of legal rights of transgender people and the recognition of the legal status of same sex marriage. Oregon has also recently adopted a “ban the box” law which prohibits employers generally from inquiring into criminal convictions on employment applications or before an interview. Federal and state enforcement activity has also broadened the treatment of “joint employment” status as Oregon, like other states, sees development of a “contingent workforce,” which includes provisional or nonpermanent workers such as freelancers, temporary contract workers, independent consultants and others.
Oregon and federal laws provide that the victim of unlawful employment discrimination may be reinstated to employment and may recover lost wages and benefits as well as damages for emotional distress and possible punitive damages. In some cases victims of discrimination can recover front pay in lieu of reinstatement. 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 and costs of litigation. 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, 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. Under state law (as distinguished from federal law) employees may but are not required to file administrative complaints before filing lawsuits. Information is also available online at the BOLI website; see other resources.
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. A link to the agency’s website is here: (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 a website with more information here: 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. It has a Portland office as well. More information is online here: www.dol.gov/esa/ofccp.
Employees wishing to investigate claims should seek counsel quickly. 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. Employers responding to claims should be sure to become aware of filing deadlines.