Oregon legislature passes bill to extend statute of limitations and prohibit non-disclosure agreements for victims of discrimination and harassment

The Oregon legislature recently took a huge stand for victims of workplace discrimination and harassment by unanimously passing Senate Bill (SB) 726, the Oregon Workplace Fairness Act. The Act provides additional protections to workers experiencing various kinds of harassment and discrimination in the workplace. The Act can be attributed in part to the #MeToo movement, which shed light on the fact that at least one-in-four women experience workplace sexual harassment, but 75% of women face retaliation after reporting an incident.  A staggering 94% of employees experiencing harassment do not file a formal complaint.

In a statement to OPB, Sen. Kathleen Taylor, D-Milwaukie, one of the chief sponsors of SB 726, stated that the goal of the legislation is to shift the power dynamic “to give employees a stronger voice when they are victims of discrimination and harassment.”

The Act expands existing civil and administrative remedies for violations against unlawful employment practices. The most significant change may be the Act’s extension of Oregon’s statute of limitations from one to five years for any workplace discrimination/harassment claims under ORS 659A.030 (related to race, color, religion, sex, sexual orientation (including gender identity), national origin, marital status, age), ORS 659A.112 (disability), and ORS 659A.082 (veterans status).  This extension is critical to protecting the rights of victims of harassment and discrimination, as victims often do not appreciate that their experience at work constitutes discrimination or harassment or is illegal, or otherwise may not report harassment or discrimination out for fear of retaliation.  This change is not effective immediately and this does not affect other applicable timelines, like Tort Claims Notice requirements against public employers or exhaustion of federal claims such as Title VII or ADA claims — if you think you may be a victim of harassment or discrimination in the workplace, you should still seek legal assistance as soon as possible, as such time limitations may affect your rights to pursue certain legal claims, particularly if you work for a public employer.

The Act also creates a significant change in Oregon law related to non-disclosure agreements and non-disparagement provisions related to workplace discrimination and harassment claims. These type of agreements usually prohibit employees from disclosing even the underlying facts of the alleged harassment or discrimination. The Act prohibits employers from requiring such provisions relating to claims of discrimination under ORS 659A.030, 659A.112, and 659A.082, and conduct that constitutes sexual assault as defined in the Act, even if such conduct occurred between an employer and employee off premises, when such agreements are requested as a condition of employment or during settlement and severance negotiations. However, victims are not prohibited from requesting such agreements if they desire confidentiality. This clause in the Act recognizes that such agreements have contributed to a pattern of secrecy in harassment and discrimination, because when victims are silenced and unable to tell their stories publicly, perpetrators are able to continue remaining in positions of power without accountability and are able to victimize others in those positions.  

The Act is groundbreaking for the additional reason that it requires proactive action on behalf of employers to prevent harassment and discrimination in the workplace. The Act requires every employer in the state to adopt written policies containing procedures and practices for reduction and prevention of unlawful discrimination under ORS 659A.030, including sexual assault as defined by the Act, and discrimination under ORS 659A.112 and ORS 659A.082. These policies must be posted and available to all employees in the workplace and must be provided to employees at the time of hire. At a minimum, the policy must: provide a process for an employee to report prohibited conduct; identify the individual designated by the employer who is responsible for receiving reports; include the statue of limitations period; include a statement that an employer may not require or coerce an employee to enter into a nondisclosure agreement; include that an employee claiming to be aggrieved by unlawful conduct may voluntarily request to enter into a nondisclosure agreement; and include a statement that advises everyone to document any incidents involving prohibited conduct, including sexual assault. The Oregon Bureau of Labor and Industries will create and publish policies and procedures that employers can use as guidance to establish their own policies.

The Act doesn’t just protect employees, it also provides some protection to employers. The Act provides that employers may void severance agreements for any employee with the ability to hire and fire employees, or exercise control over employees, if, after an investigation, the employer determines that  such an employee engaged in conduct that violates the employer’s policies or provisions of the Act.

Overall, the Act provides critical changes to Oregon law to ensure workers who experience discrimination and harassment can seek justice and that perpetrators are ultimately held accountable. “This bill is a long overdue modernization of the statutes that govern discrimination in the workplace . . . addressing workplace discrimination and harassment is a matter of basic fairness,” said Sen. Tim Knopp, R-Bend. Sen. Kathleen Taylor (D-Portland), Sen. Tim Knopp (R-Bend), and Sen. Sara Gelser (D-Corvallis) were co-chief sponsors of the bill. A bipartisan, bicameral group of 26 legislators signed on as sponsors. The bill now proceeds to Governor Brown for her signature.

Once signed by the Governor, SB 726 will take effect 91 days after the 2019 legislature adjourns.

United States Supreme Court to Decide Whether Title VII Prohibits Discrimination on Basis of Sexual Orientation or Gender Identity

The United States Supreme Court has granted certiori of a series of cases raising the question of whether discrimination against an employee because of sexual orientation or gender identity constitutes discrimination “based on sex” under Title VII of the Civil Rights Act of 1964.

In two consolidated cases, the court will consider whether discrimination based on sexual orientation constitutes discrimination based on sex. In Altitude Express v. Zarda, a New York skydiving company fired Donald Zarda, who worked as an instructor for the company. Zarda contends that he was terminated because he is gay. In Bostock v. Clayton County, Georgia , the petitioner, Gerald Bostock, worked as a child-welfare-services coordinator in Clayton County, Georgia.  Bostock contends that after the county learned that he was gay, it falsely accused him of mismanaging public money so that it could fire him – when it was in fact firing him because he was gay.

RG and GR Harris Funeral Homes v. EEOC will be argued on the same day. That case presents the question of whether discrimination based on gender identity constitutes discrimination “based on sex” under Title VII.  There, a funeral home company hired Aimee Stephens, whose employment records identified Stephens as male.  Six years later, Stephens informed the company’s owner that Stephens identified as a woman and wanted to wear women’s clothing to work.  Stephens was fired because the owner believed that allowing Stephens to wear women’s clothes would both violate the funeral home’s dress code and would be “violating God’s commands.”

Currently, there is a split in the circuit courts as to whether discrimination based on sexual orientation or gender identity constitutes discrimination “based on sex” under Title VII. Courts that have extended Title VII protections to the LGBTQ community have generally done so under the Supreme Court’s decision in Price Waterhouse v. Hopkins, which held that discrimination based on the failure to conform to gender stereotypes constitutes discrimination “based on sex.”

The outcome of these decisions will have an important impact on the LGBTQ community. Not only has the current administration rolled back protections for the transgender community, but, it currently is legal in approximately fifty percent of states to discriminate against individuals based on their sexual orientation or gender identity. Thus, uniform employment protections for LGBTQ individuals are critically important.

 

 

 

 

 

Oregon Equal Pay Act Adds Needed Protections for Disabled Workers and Other Protected Classes

The 2017 Oregon Legislature amended the Oregon Equal Pay Act (HB 2005),  which prohibits employers from inquiring about the salary history of job applicants.  The law also makes it an unlawful employment practice to discriminate in compensation on the basis of an employee's protected class, which the Act defines as race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.  Instead, compensation must be based on a bona fide factor, such as an employee's training, experience, seniority, education, or merit.  Compensation under the law includes all forms of compensation, not just wages.  The law previously only prohibited gender pay disparities, but was amended to apply to the range of protected classes above and added additional protections, such as the prohibition on salary history inquiries.

This law is expansive in that the statute of limitations begins to run each time compensation is paid under a discriminatory compensation system.  Furthermore, unlike other claims, if the discrimination is committed by a public body, the individual has 300 days (instead of 180 days) to give notice to the public body of the alleged loss or injury.

The new law provides necessary protections for disabled workers and other protected classes, because it prevents potential employers from perpetuating discrimination in compensation by former employers.  It also prevents employers from taking into consideration an employee's protected class in determining compensation, whether directly or indirectly.  Thus, disability-related conduct also should not be taken into consideration when determining compensation.

The Oregon Equal Pay Act takes effect on October 6, 2017.  Private rights of action and the non-discrimination provisions of the law take effect on January 1, 2019.  The ability to seek punitive damages under the act takes effect January 1, 2024.

Oregon Supreme Court Rules that Intellectual Disability of Offender must be Considered in Sentencing

On June 22, 2017, in State v. Ryan, the Oregon Supreme Court reversed a trial court's application of the mandatory minimum sentence to an offender with an intellectual disability, holding that the trial court erred in failing to consider the relevance of the offender's intellectual disability in determining both the gravity of the offense and the severity of its penalty. 

The Court explained that, among other factual considerations, a sentencing court should consider an offender’s level of understanding of the nature and consequences of his or her conduct and ability to conform his or her behavior to the law.  The Court therefore held that a sentencing court is required to consider an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender.

In Oregon, the minimum age for establishing criminal responsibility of a child is 12 years old.  The offender in this case had an IQ of 50 and a mental capacity of a child who is 10 years old.  Despite those facts, the sentencing court had failed to consider the offender's intellectual disability in applying the minimum mandatory sentence under Measure 11.  The Oregon Supreme Court therefore remanded to the sentencing court for resentencing and proper consideration of the offender's intellectual disability in the first instance.

See the full opinion here:  http://www.publications.ojd.state.or.us/docs/S063857.pdf

Justice Department Issues Guidance to Support Criminal Justice Entities' Compliance with the ADA

On January 11, 2017, the United States Justice Department issued guidance to facilitate criminal justice entities' compliance with the Americans with Disabilities Act (ADA) during interactions with individuals with mental health disabilities or intellectual or developmental disabilities. 

Title II of the ADA applies to public entities, such as the criminal just system and provides that no qualified individual with a disability shall, because of that disability, be excluded from participation in, denied the benefits of, or subjected to discrimination in the services, programs and activities of the public entity. 

The guidance explains that, in addition to ensuring that people with mental health disabilities, intellectual disabilities, or developmental disabilities have equal opportunities to participate in services and programs, the criminal justice system should consider systemic issues and employ training programs to prepare personnel to execute their ADA responsibilities.  The guidance provides examples of how leaders have facilitated compliance with the ADA and provides best practices.

Read the full guidance here.

 

Supreme Court adds transgender bathroom issue to docket

Yesterday, on October 28, 2016, the United States Supreme Court granted cert in Glacouster County School Board v. G.C., the case of a transgender student who identifies as a boy and wants to be allowed to use the boys' bathroom at his high school in the state of Virginia.

Unfortunately, it appears the court may be considering more technical issues in the case, rather than the substantive issue of whether a school must treat transgender students consistent with their gender identity.  

Visit Scotusblog to learn more about the Court's grant of cert in this case.

HUD Issues New Gender Identity Rule

On September 14, 2016, the Department of Housing and Urban Development (HUD), issued a final rule ensuring equal access for individuals in accordance with their gender identity in programs and shelters funded and administered by HUD's Office of Community Planning and Development (CPD).  The rule ensures that recipients and subrecipients of CPD funding grant equal access to such facilities and services (such as temporary shelters, emergency shelters, and other buildings and facilities used for shelter) to individuals in accordance with an individual's gender identity.

The rule amends HUD's definition of "gender identity" to more clearly reflect the difference between actual and perceived identity and eliminates the prohibition on inquiries related to sexual orientation and gender identity, so that service providers can ensure compliance with the new rule.  The rule does not permit services providers to subject individuals to intrusive questioning to ask them to provide documentation.

Read HUD's new Gender Identity Rule