Discrimination in Employment Opportunities

The information below is from the Oregon State Bar's Tel-law service, a collection of recorded legal information messages prepared by the lawyers of Oregon. In addition to being online, the Tel-law service is accessible by telephone at 503-620-3000 or toll-free in Oregon only, 1-800-452-4776. A touch tone phone allows direct access 24 hours a day, 7 days a week. To receive a free Tel-law brochure listing the subjects available call 503-620-0222, ext. 0.

The following information regarding discrimination is brought to you as a public service by the lawyers of the State of Oregon. The material presented is general legal information intended to alert you to possible legal problems and solutions.

'Discrimination' in employment means that an employer or an employment agency is not treating all qualified employees or applicants equally. However, not all discriminatory actions by employers are against the law. 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, for any reason unless that reason is unlawful under state, federal or local law.

Most unlawful reasons 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, and the disabled. The second type of unlawful discrimination is based on 'protected activities,' such as making a workers' compensation claim 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, sex, national origin, religion, age, marital status, family status or mental or physical disability, a claim for discrimination may exist. Sometimes, claims of discrimination may also be based on a person's sexual orientation.

Another form of discrimination is when an employer sets standards that appear to be fair and are applied to everyone, but have a disproportionate impact upon a protected group, such as minorities or the elderly. 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. 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, race, color, national origin, disability or age. 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.

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 a disabled person can perform the essential functions of the job and requests reasonable accommodation of his or her disability, the employer must attempt to reasonably accommodate the employee. 'Reasonable accommodation' can include wheelchair access, schedule changes, or reassignments of job duties. An employer does not have to reasonably accommodate a disabled employee if this would cause the employer undue hardship.

Pregnant employees are entitled to the same benefits offered other employees who have temporary disabilities. Regardless of how other temporary disabilities are treated, the pregnant employee still has a right to reasonable accommodations of her pregnancy and to a leave of absence. 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 some other reasons 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 a 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, termination’s, 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 or even ask before offering a job whether the applicant has any impairment that would prevent him or her from performing the job, although an employer may legally inquire into an applicant’s ability to perform job-related functions, if 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. An employer can terminate an injured worker's employment when the worker is unable to work. However, if after recovering, the employee can return to the job he or she was doing when injured, the employer must hire the employee back. If the employee can only do modified work, the employer must give the employee any 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 should recover lost wages and benefits. A victim of unlawful discrimination does have to try to find other work. Emotional distress and punitive damages also may be awarded. If the employee's claim is successful, the employer may be ordered to pay some or all of the employee's reasonable legal fees. In an equal pay, federal Family and Medical Leave Act, or age discrimination case, the victim may in some cases recover double the amount of lost wages.

The Oregon laws against discrimination in employment are administered by the Civil Rights Division of the Oregon Bureau of Labor and Industries. Victims of illegal conduct may proceed directly to state court or to the Civil Rights Division. You may contact the Oregon Civil Rights Division office closest to you through the phone book listing for the Bureau of Labor and Industries or the local Employment Division Office, or call the Portland office of the Division at 503-731-4075.

Federal anti-discrimination laws are administered by the Equal Employment Opportunity Commission (EEOC). An employee claiming discrimination under federal law must file a charge of discrimination with the EEOC before going to court. The closest office of the EEOC is in Seattle, Washington (206-220-6883). Other federal discrimination claims are handled by the U.S. Department of Labor Wage and Hour Division, which has a Portland office (503-326-3057). If your employer performs work on federal contracts or subcontracts and is subject to affirmative action requirements, you may contact the federal Office of Federal Contract Compliance Programs in Portland (503-326-4112).

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 you from pursuing any remedy against the employer. Find out about any filing deadlines as soon as discrimination has occurred, even if you have not yet decided to file a discrimination claim.

Although Tel-Law information is periodically reviewed, it is important for you 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.