73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1657
Senate Bill 500
Sponsored by Senator METSGER, Representative BERGER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Prohibits discrimination against persons in employment, housing
and public accommodations based on sexual orientation.
Authorizes enforcement of prohibition through civil action.
Permits Commissioner of Bureau of Labor and Industries to enforce
prohibition of unlawful practices based on sexual orientation.
A BILL FOR AN ACT
Relating to discrimination based on sexual orientation; creating
new provisions; amending ORS 353.100, 421.352, 654.062,
659A.001, 659A.003, 659A.006, 659A.012, 659A.030, 659A.403,
659A.406, 659A.409, 659A.421, 659A.424, 659A.805, 659A.815 and
659A.885; and repealing ORS 236.380.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 659A.001 is amended to read:
659A.001. As used in this chapter:
{ - (1) 'Bureau' means the Bureau of Labor and
Industries. - }
{ - (2) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
{ - (3) - } { + (1) + } 'Employee' does not include any
individual employed by the individual's parents, spouse or child
or in the domestic service of any person.
{ - (4) - } { + (2) + } 'Employer' means any person who in
this state, directly or through an agent, engages or uses the
personal service of one or more employees, reserving the right to
control the means by which { - such - } { + the + } service
is or will be performed.
{ - (5) - } { + (3) + } 'Employment agency' includes any
person undertaking to procure employees or opportunities to work.
{ - (6)(a) - } { + (4)(a) + } 'Familial status' means the
relationship between one or more individuals who have not
attained 18 years of age and who are domiciled with:
(A) A parent or another person having legal custody of the
individual; or
(B) The designee of the parent or other person having
{ - such - } { + legal + } custody { + of the individual + },
with the written permission of the parent or other person.
(b) 'Familial status' includes any individual, regardless of
age or domicile, who is pregnant or is in the process of securing
legal custody of an individual who has not attained 18 years of
age.
{ - (7) - } { + (5) + } 'Labor organization' includes any
organization
{ - which - } { + that + } is constituted for the purpose, in
whole or in part, of collective bargaining or in dealing with
employers concerning grievances, terms or conditions of
employment or of other mutual aid or protection in connection
with employees.
{ - (8) - } { + (6) + } 'National origin' includes
ancestry.
{ - (9) - } { + (7) + } 'Person' includes one or more
individuals, partnerships, associations, labor organizations,
limited liability companies, joint stock companies, corporations,
legal representatives, trustees, trustees in bankruptcy or
receivers. ' Person' also includes a public body as defined in
ORS 30.260.
{ - (10) - } { + (8) + } 'Respondent' means any person
against whom a complaint or charge of an unlawful practice is
filed with the Commissioner { + of the Bureau of Labor and
Industries + } or whose name has been added to { - such - }
{ + the + } complaint or charge pursuant to ORS 659A.835.
{ + (9) 'Sexual orientation' means actual or perceived
homosexuality, heterosexuality or bisexuality. + }
{ - (11) - } { + (10) + } 'Unlawful employment practice'
means a practice specifically denominated as an unlawful
employment practice in this chapter. 'Unlawful employment
practice' includes a practice that is specifically denominated in
another statute of this state as an unlawful employment practice
and that is specifically made subject to enforcement under this
chapter.
{ - (12) - } { + (11) + } 'Unlawful practice' means any
unlawful employment practice or any other practice specifically
denominated as an unlawful practice in this chapter. 'Unlawful
practice ' includes a practice that is specifically denominated
in another statute of this state as an unlawful practice and that
is specifically made subject to enforcement under this chapter,
or a practice that violates a rule adopted by the commissioner
for the enforcement of the provisions of this chapter.
SECTION 2. ORS 659A.003 is amended to read:
659A.003. The purpose of this chapter is to encourage the
fullest utilization of { + the + } available { - manpower - }
{ + workforce + } by removing arbitrary standards of race,
religion, color, sex, { + sexual orientation, + }marital
status, national origin or age as a barrier to employment of the
inhabitants of this state, and to ensure the human dignity of all
people within this state and protect their health, safety and
morals from the consequences of intergroup hostility, tensions
and practices of discrimination of any kind based on race,
religion, color, sex, { + sexual orientation, + } marital status
or national origin. To accomplish this purpose, the Legislative
Assembly intends by this chapter to provide:
(1) A program of public education calculated to eliminate
attitudes upon which practices of discrimination because of race,
religion, color, sex, { + sexual orientation, + }marital status
or national origin are based.
(2) An adequate remedy for persons aggrieved by certain acts of
discrimination because of race, religion, color, sex, { + sexual
orientation, + }marital status or national origin or
unreasonable acts of discrimination in employment based upon age.
(3) An adequate administrative machinery for the orderly
resolution of complaints of discrimination through a procedure
involving investigation, conference, conciliation and persuasion;
to encourage the use in good faith of { - such - }
{ + the + } machinery by all parties to a complaint of
discrimination; and to discourage unilateral action which makes
moot the outcome of final administrative or judicial
determination on the merits of { - such a - } { + the + }
complaint.
SECTION 3. ORS 659A.006 is amended to read:
659A.006. (1) It is declared to be the public policy of Oregon
that practices of discrimination against any of its inhabitants
because of race, religion, color, sex, { + sexual orientation,
+ }marital status, national origin, age or disability are a
matter of state concern and that { - such - } { + the + }
discrimination threatens not only the rights and privileges of
its inhabitants but menaces the institutions and foundation of a
free democratic state.
(2) The opportunity to obtain employment without discrimination
because of race, religion, color, sex, { + sexual orientation,
+ }marital status, national origin, age or disability hereby is
recognized as and declared to be a civil right. However, this
section { - shall - } { + may + } not be construed to prevent
a bona fide church or sectarian religious institution, including
but not limited to a school, hospital or church camp, from
preferring an employee or applicant for employment of one
religious sect or persuasion over another when:
(a) That religious sect or persuasion to which the employee or
applicant belongs is the same as that of { - such - }
{ + the + } church or institution;
(b) In the opinion of { - such bona fide - } { + the + }
church or
{ - sectarian religious - } institution, { - such a - }
{ + the + } preference will best serve the purposes of
{ - such - } { + the + } church or institution; and
(c) The employment involved is closely connected with or
related to the primary purposes of the church or institution and
is not connected with a commercial or business activity
{ - which - } { + that + } has no necessary relationship to the
church or institution, or to its primary purposes.
SECTION 4. ORS 659A.012 is amended to read:
659A.012. (1) To achieve the public policy of the State of
Oregon for persons in the state to attain employment and
advancement without discrimination because of race, religion,
color, sex, { + sexual orientation, + } marital status, national
origin, disability or age, every state agency shall be required
to include in the evaluation of all management personnel the
manager's or supervisor's effectiveness in achieving affirmative
action objectives as a key consideration of the manager's or
supervisor's performance.
(2) To achieve the public policy of the State of Oregon for
persons in the state to attain employment and advancement without
discrimination because of race, religion, color, sex, { + sexual
orientation, + } marital status, national origin, age or
disability, every state agency shall be required to present the
affirmative action objectives and performance of that agency of
the current biennium and those for the following biennium to the
Governor of the State of Oregon and to the Legislative Assembly.
These plans shall be reviewed as part of the budget review
process.
SECTION 5. ORS 659A.030 is amended to read:
659A.030. (1) It is an unlawful employment practice:
(a) For an employer, because of an individual's race, religion,
color, sex, { + sexual orientation, + }national origin, marital
status or age if the individual is 18 years of age or
older { + , + } or because of the race, religion, color, sex,
{ + sexual orientation, + } national origin, marital status or
age of any other person with whom the individual associates, or
because of { - a - } { + an individual's + } juvenile record
{ - , - } that has been expunged pursuant to ORS 419A.260 and
419A.262, { - of any individual, - } to refuse to hire or
employ { + the individual + } or to bar or discharge { + the
individual + } from employment
{ - such individual - } . However, discrimination is not an
unlawful employment practice if { - such - } { + the + }
discrimination results from a bona fide occupational
{ - requirement - } { + qualification + } reasonably necessary
to the normal operation of the employer's business.
(b) For an employer, because of an individual's race, religion,
color, sex, { + sexual orientation, + }national origin, marital
status or age if the individual is 18 years of age or older, or
because of the race, religion, color, sex, { + sexual
orientation, + } national origin, marital status or age of any
other person with whom the individual associates, or because of
{ - a - } { + an individual's + } juvenile record { - , - }
that has been expunged pursuant to ORS 419A.260 and 419A.262,
{ - of any individual, - } to discriminate against
{ - such - } { + the + } individual in compensation or in
terms, conditions or privileges of employment.
(c) For a labor organization, because of an individual's race,
religion, color, sex, { + sexual orientation, + } national
origin, marital status or age if the individual is 18 years of
age or older { + , + } or because of { - a - } { + an
individual's + } juvenile record { - , - } that has been
expunged pursuant to ORS 419A.260 and 419A.262, { - of any
individual - } to exclude or to expel from its membership
{ - such - } { + the + } individual or to discriminate in any
way against { - any such - } { + the + } individual or any
other person.
(d) For any employer or employment agency to print or circulate
or cause to be printed or circulated any statement, advertisement
or publication, or to use any form of application for employment
or to make any inquiry in connection with prospective employment
{ - which - } { + that + } expresses directly or indirectly
any limitation, specification or discrimination as to an
individual's race, religion, color, sex, { + sexual
orientation, + } national origin, marital status or age if the
individual is 18 years of age or older { + , + } or on the basis
of an expunged juvenile record, or any intent to make { - any
such - } { + the + } limitation, specification or
discrimination, unless based upon a bona fide occupational
qualification. { - But identifying - } { + Identification
of + } employees according to race, religion, color, sex,
{ + sexual orientation, + }national origin, marital status
{ - , - } or age does not violate this section unless the
Commissioner of the Bureau of Labor and Industries, after a
hearing conducted pursuant to ORS 659A.805, determines that
{ - such a - } { + the + } designation expresses an intent to
limit, specify or discriminate on the basis of race, religion,
color, sex, { + sexual orientation, + }national origin, marital
status or age.
(e) For an employment agency { + , because of an individual's
race, religion, color, sex, sexual orientation, national origin,
marital status or age if the individual is 18 years of age or
older, or because of the race, religion, color, sex, sexual
orientation, national origin, marital status or age of any other
person with whom the individual associates, or because of an
individual's juvenile record that has been expunged pursuant to
ORS 419A.260 and 419A.262, + } to classify or refer for
employment, or to fail or refuse to refer for employment, or
otherwise to discriminate against { - any - } { + the + }
individual { + . + } { - : - }
{ - (A) On the basis of the individual's race, color,
national origin, sex, religion, marital status or age, if the
individual is 18 years of age or older; - }
{ - (B) Because of the race, color, national origin, sex,
religion, marital status or age of any other person with whom the
individual associates; or - }
{ - (C) Because of a juvenile record, that has been expunged
pursuant to ORS 419A.260 and 419A.262. - }
However, it is not an unlawful employment practice for an
employment agency to classify or refer for employment any
individual { - where such - } { + when the + } classification
or referral results from a bona fide occupational
{ - requirement - } { + qualification + } reasonably necessary
to the normal operation of the employer's business.
(f) For any person to discharge, expel or otherwise
discriminate against any other person because that other person
has opposed any unlawful practice, or because that other person
has filed a complaint, testified or assisted in any proceeding
under this chapter or has attempted to do so.
(g) For any person, whether an employer or an employee, to aid,
abet, incite, compel or coerce the doing of any of the acts
forbidden under this chapter or to attempt to do so.
(2) The provisions of this section apply to an apprentice under
ORS chapter 660, but the selection of an apprentice on the basis
of the ability to complete the required apprenticeship training
before attaining the age of 70 years is not an unlawful
employment practice. The commissioner shall administer this
section with respect to apprentices under ORS chapter 660 equally
with regard to all employees and labor organizations.
(3) The compulsory retirement of employees required by law at
any age is not an unlawful employment practice if lawful under
federal law.
(4)(a) It is not an unlawful employment practice for an
employer or labor organization to provide or make financial
provision for child care services of a custodial or other nature
to its employees or members who are responsible for a minor
child.
(b) As used in this subsection, 'responsible for a minor child'
means having custody or legal guardianship of a minor child or
acting in loco parentis to the child.
SECTION 6. ORS 659A.403 is amended to read:
659A.403. (1) Except as provided in subsection (2) of this
section, all persons within the jurisdiction of this state are
entitled to the full and equal accommodations, advantages,
facilities and privileges of any place of public accommodation,
without any distinction, discrimination or restriction on account
of race, religion, { + color, + } sex, { + sexual orientation,
+ }marital status,
{ - color, - } national origin or age if the individual is 18
years of age or older.
(2) Subsection (1) of this section does not prohibit:
(a) The enforcement of laws governing the consumption of
alcoholic beverages by minors and the frequenting by minors of
places of public accommodation where alcoholic beverages are
served; or
(b) The offering of special rates or services to persons 55
years of age or older.
(3) It is an unlawful practice for any person to deny full and
equal accommodations, advantages, facilities and privileges of
any place of public accommodation in violation of this section.
SECTION 7. ORS 659A.406 is amended to read:
659A.406. Except as otherwise authorized by ORS 659A.403, it is
an unlawful practice for any person to aid or abet any place of
public accommodation, as defined in ORS 659A.400, or any person
acting on behalf of { - such - } { + the + } place { + of
public accommodation + } to make any distinction, discrimination
or restriction on account of race, religion, color, sex,
{ + sexual orientation, + }marital status, national origin or
age if the individual is 18 years of age or older.
SECTION 8. ORS 659A.409 is amended to read:
659A.409. Except as provided by laws governing the consumption
of alcoholic beverages by minors and the frequenting by minors of
places of public accommodation where alcoholic beverages are
served, and except for special rates or services offered to
persons 55 years of age or older, it is an unlawful practice for
any person acting on behalf of any place of public accommodation
as defined in ORS 659A.400 to publish, circulate, issue or
display, or cause to be published, circulated, issued or
displayed, any communication, notice, advertisement or sign of
any kind to the effect that any of the accommodations,
advantages, facilities, services or privileges of { - such - }
{ + the + } place of public accommodation will be refused,
withheld from or denied to, or that any discrimination will be
made against, any person on account of race, religion,
{ + color, + } sex, { + sexual orientation, + }marital status,
{ - color, - } national origin or age if the individual is 18
years of age or older.
SECTION 9. ORS 659A.421 is amended to read:
659A.421. (1) { - No - } { + A + } person { - shall - }
{ + may not + }, because of race, color, sex, { + sexual
orientation, + }marital status, source of income, familial
status, religion or national origin of any person:
(a) Refuse to sell, lease or rent any real property to a
purchaser.
(b) Expel a purchaser from any real property.
(c) Make any distinction, discrimination or restriction against
a purchaser in the price, terms, conditions or privileges
relating to the sale, rental, lease or occupancy of real property
or in the furnishing of any facilities or services in connection
therewith.
(d) Attempt to discourage the sale, rental or lease of any real
property to a purchaser.
(e) Publish, circulate, issue or display, or cause to be
published, circulated, issued or displayed, any communication,
notice, advertisement or sign of any kind relating to the sale,
rental or leasing of real property { - which - } { + that + }
indicates any preference, limitation, specification or
discrimination based on race, color, sex, { + sexual
orientation, + }marital status, source of income, { + familial
status, + } religion or national origin.
(f) Assist, induce, incite or coerce another person to commit
an act or engage in a practice that violates this subsection and
subsection (3) of this section.
(g) Coerce, intimidate, threaten or interfere with any person
in the exercise or enjoyment of, or on account of having aided or
encouraged any other person in the exercise of, any right granted
or protected by this section.
(2)(a) { - No - } { + A + } person whose business includes
engaging in residential real estate related transactions
{ - shall - } { + may not + } discriminate against any person
in making { + a transaction + } available
{ - such a transaction, - } or in the terms or conditions of
{ - such a - } { + the + } transaction, because of race, color,
sex, { + sexual orientation, + } marital status, source of
income, familial status, religion or national origin.
(b) As used in this subsection, 'residential real estate
related transaction' means any of the following:
(A) The making or purchasing of loans or providing other
financial assistance:
(i) For purchasing, constructing, improving, repairing or
maintaining a dwelling; or
(ii) For securing residential real estate; or
(B) The selling, brokering or appraising of residential real
property.
(3) { - No - } { + A + } real estate licensee
{ - shall - } { + may not + } accept or retain a listing of
real property for sale, lease or rental with an understanding
that a purchaser may be discriminated against with respect to the
sale, rental or lease thereof because of race, color, sex,
{ + sexual orientation, + }marital status, source of income,
familial status, religion or national origin.
(4) { - No - } { + A + } person { - shall - } { + may
not + }, for profit, induce or attempt to induce any other person
to sell or rent any dwelling by representations regarding the
entry or prospective entry into the neighborhood of a person or
persons of a particular race, color, sex, { + sexual
orientation, + }marital status, source of income, familial
status, religion or national origin.
(5) For purposes of subsections (1) to (4) of this section, '
source of income' does not include federal rent subsidy payments
under 42 U.S.C. 1437f, income from specific occupations or income
derived in an illegal manner.
(6) Subsections (1) and (3) of this section do not apply with
respect to sex distinction, discrimination or restriction if the
real property involved is such that the application of
subsections (1) and (3) of this section would necessarily result
in common use of bath or bedroom facilities by unrelated persons
of opposite sex.
(7)(a) This section does not apply to familial status
distinction, discrimination or restriction with respect to
housing for older persons.
(b) As used in this subsection, 'housing for older persons '
means housing:
(A) Provided under any state or federal program that is
specifically designed and operated to assist elderly persons, as
defined by the state or federal program;
(B) Intended for, and solely occupied by, persons 62 years of
age or older; or
(C) Intended and operated for occupancy by at least one person
55 years of age or older per unit. Housing qualifies as housing
for older persons under this subparagraph if:
(i) At least 80 percent of the dwellings are occupied by at
least one person 55 years of age or older per unit; and
(ii) Policies and procedures { - which - } { + that + }
demonstrate an intent by the owner or manager to provide housing
for persons 55 years of age or older are published and adhered
to.
(c) Housing { - shall - } { + does + } not fail to meet the
requirements for housing for older persons if:
(A) Persons residing in { - such - } { + the + } housing as
of September 13, 1988, do not meet the requirements of paragraph
(b)(B) or (C) of this subsection. However, new occupants of such
housing shall meet the age requirements of paragraph (b)(B) or
(C) of this subsection; or
(B) The housing includes unoccupied units { - . However,
such - } { + , if the + } units are reserved for occupancy by
persons who meet the age requirements of paragraph (b)(B) or (C)
of this subsection.
(d) Nothing in this section limits the applicability of any
reasonable local, state or federal restrictions regarding the
maximum number of occupants permitted to occupy a dwelling.
(8) In the sale, lease or rental of real estate, { - no - }
{ + a + } person { - shall - } { + may not + } disclose to
any person that an occupant or owner of real property has or died
from human immunodeficiency virus or acquired immune deficiency
syndrome.
(9) The provisions of subsection { - (1)(a) to (d) and
(f) - } { + (1) + } of this section that prohibit actions based
upon familial status { + , + }
{ - or - } sex { + or sexual orientation + } do not apply to
the renting of space within a single-family residence if the
owner actually maintains and occupies the residence as the
owner's primary residence and all occupants share some common
space within the residence.
(10) Any violation of this section is an unlawful practice.
SECTION 10. ORS 659A.424 is amended to read:
659A.424. (1) As used in this section:
(a) 'Facially neutral housing policy' means a guideline,
practice, rule, or screening or admission criterion regarding a
real property transaction that applies equally to all persons.
(b) 'Protected class' means a group of persons distinguished by
race, color, sex, { + sexual orientation, + } marital status,
source of income, familial status, religion, national origin or
disability.
(c) 'Real property transaction' means an act described in ORS
659A.145 or 659A.421 involving the renting or leasing of
residential real property subject to ORS chapter 90.
(2) A court or the Commissioner of the Bureau of Labor and
Industries may find that a person has violated ORS 659A.145 or
659A.421 if:
(a) The person applies a facially neutral housing policy to a
member of a protected class in a real property transaction
involving a residential tenancy subject to ORS chapter 90; and
(b) Application of the policy adversely impacts members of the
protected class to a greater extent than the policy adversely
impacts persons generally.
(3) In determining under subsection (2) of this section whether
a violation has occurred and, if so, what relief should be
granted, a court or the commissioner shall consider:
(a) The significance of the adverse impact on the protected
class;
(b) The importance and necessity of any business purpose for
the facially neutral housing policy; and
(c) The availability of less discriminatory alternatives for
achieving the business purpose for the facially neutral housing
policy.
SECTION 11. ORS 659A.805 is amended to read:
659A.805. (1) In accordance with any applicable provision of
ORS chapter 183, the Commissioner of the Bureau of Labor and
Industries may adopt reasonable rules:
(a) Establishing what acts and communications constitute a
notice, sign or advertisement that public accommodation or real
property will be refused, withheld from, or denied to any person
or that discrimination will be made against the person because of
race, religion, sex, { + sexual orientation, + }marital status,
color, national origin or { - , - } { + :
(A) + } With respect to public accommodation, age.
{ + (B) With respect to real property, familial status. + }
(b) Establishing what inquiries in connection with employment
and prospective employment express a limitation, specification or
discrimination as to race, religion, color, sex, { + sexual
orientation, marital status, + } national origin or age.
(c) Establishing what inquiries in connection with employment
and prospective employment soliciting information as to race,
religion, color, sex, { + sexual orientation, marital
status, + } national origin or age are based on bona fide
{ - job - } { + occupational + } qualifications.
(d) For internal operation and practice and procedure before
the commissioner under this chapter.
(e) Covering any other matter required to carry out the
purposes of this chapter.
(2) In adopting rules under this section the commissioner shall
consider the following factors, among others:
(a) The relevance of information requested to job performance
in connection with which it is requested.
(b) Available reasonable alternative ways of obtaining
requested information without soliciting responses as to race,
religion, color, sex, { + sexual orientation, + }marital
status, national origin or age.
(c) Whether a statement or inquiry soliciting information as to
race, religion, color, sex, { + sexual orientation, + }marital
status, national origin or age communicates an idea independent
of an intention to limit, specify or discriminate as to race,
religion, color, sex, { + sexual orientation, + } marital
status, national origin or age.
(d) Whether the independent idea communicated is relevant to a
legitimate objective of the kind of transaction { - which - }
{ + that + } it contemplates.
(e) The ease with which the independent idea relating to a
legitimate objective of the kind of transaction contemplated
could be communicated without connoting an intention to
discriminate as to race, religion, color, sex, { + sexual
orientation, + }marital status, national origin or age.
SECTION 12. ORS 659A.815 is amended to read:
659A.815. (1) The Commissioner of the Bureau of Labor and
Industries shall create { - such - } advisory agencies and
intergroup-relations councils { - , local, regional or
statewide, as in the judgment of - } { + that + } the
commissioner { + believes + } will aid in effectuating the
purposes of this chapter. The commissioner may empower
{ - them - } { + an advisory agency or council + }:
(a) To study the problems of discrimination in all or specific
fields of human relationships or in specific instances of
discrimination because of race, religion, color, sex { + , sexual
orientation, marital status + } or national origin.
(b) To foster, through community effort or otherwise, goodwill,
cooperation and conciliation among the groups and elements of the
population of the state.
(c) To make recommendations to the commissioner for the
development of policies and procedures in general and in specific
instances, and for programs of formal and informal education.
(2) { - Such - } { + The + } advisory agencies and councils
shall be composed of representative citizens, serving without
pay, but with reimbursement for actual and necessary expenses in
accordance with laws and regulations governing state officers.
(3) The commissioner may make provision for technical and
clerical assistance to { - such - } { + the advisory + }
agencies and councils and for the expenses of { - such - }
{ + the + } assistance.
SECTION 13. ORS 659A.885 is amended to read:
659A.885. (1) Any individual claiming to be aggrieved by an
unlawful practice specified in subsection (2) of this section may
file a civil action in circuit court. In any action under this
subsection, the court may order injunctive relief and
{ - such - } { + any + } other equitable relief { - as - }
{ + that + } may be appropriate, including but not limited to
reinstatement or the hiring of employees with or without back
pay. A court may order back pay in an action under this
subsection only for the two-year period immediately preceding the
filing of a complaint under ORS 659A.820 with the Commissioner of
the Bureau of Labor and Industries, or if a complaint was not
filed before the action was commenced, the two-year period
immediately preceding the filing of the action. In any action
under this subsection, the court may allow the prevailing party
costs and reasonable attorney fees at trial and on appeal. Except
as provided in subsection (3) of this section:
(a) The judge shall determine the facts in an action under this
subsection; and
(b) Upon any appeal of a judgment in an action under this
subsection, the appellate court shall review the judgment
pursuant to the standard established by ORS 19.415 (3).
(2) An action may be brought under subsection (1) of this
section for the following unlawful practices: ORS 25.337, 25.424,
399.235, 659A.030, 659A.040, 659A.043, 659A.046, 659A.063,
659A.069, 659A.100 to 659A.145, 659A.150 to 659A.186, 659A.194,
659A.203, 659A.218, 659A.230, 659A.233, 659A.236, 659A.250 to
659A.262, 659A.300, 659A.306, 659A.309, 659A.318 and 659A.421 (1)
or (3).
(3) In any action under subsection (1) of this section alleging
a violation of ORS 25.337, 25.424, 659A.040, 659A.043, 659A.046,
659A.069, 659A.100 to 659A.145, 659A.230, 659A.250 to 659A.262,
659A.318 or 659A.421 (1) or (3):
(a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory damages or
$200, whichever is greater, and punitive damages;
(b) At the request of any party, the action shall be tried to a
jury;
(c) Upon appeal of any judgment finding a violation, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1); and
(d) Any attorney fee agreement shall be subject to approval by
the court.
(4) In any action under subsection (1) of this section alleging
a violation of ORS 659A.203 or 659A.218, the court may award, in
addition to the relief authorized under subsection (1) of this
section, compensatory damages or $250, whichever is greater.
(5) Any individual against whom any distinction, discrimination
or restriction on account of race, religion, sex, { + sexual
orientation, + }marital status, color, national origin or age
{ - , - } if the individual is 18 years of age or older, has
been made by any place of public accommodation, as defined in ORS
659A.400, by any person acting on behalf of { - such - }
{ + the + } place or by any person aiding or abetting
{ - such - } { + the + } place or person in violation of ORS
659A.406 { + , + } may bring an action against the operator or
manager of { - such - } { + the + } place, the employee or
person acting on behalf of { - such - } { + the + } place or
the aider or abettor of
{ - such - } { + the + } place or person. Notwithstanding
subsection (1) of this section, in an action under this
subsection:
(a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory and punitive
damages;
(b) The operator or manager of the place of public
accommodation, the employee or person acting on behalf of the
place, and any aider or abettor shall be jointly and severally
liable for all damages awarded in the action;
(c) At the request of any party, the action shall be tried to a
jury;
(d) The court shall award reasonable attorney fees to a
prevailing plaintiff;
(e) The court may award reasonable attorney fees and expert
witness fees incurred by a defendant who prevails only if the
court determines that the plaintiff had no objectively reasonable
basis for asserting a claim or no reasonable basis for appealing
an adverse decision of a trial court; and
(f) Upon any appeal of a judgment under this subsection, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1).
SECTION 14. { + ORS 236.380 is repealed. + }
SECTION 15. ORS 353.100, as amended by section 263, chapter
794, Oregon Laws 2003, is amended to read:
353.100. (1) The provisions of ORS chapters 35, 190, 192, 244
and 295 and ORS 30.260 to 30.460, 200.005 to 200.025, 200.045 to
200.090, 236.605 to 236.640, 243.650 to 243.782, 297.040, 307.090
and 307.112 { - shall - } apply to Oregon Health and Science
University under the same terms as they apply to public bodies
other than the state.
(2) Except as otherwise provided by law, the provisions of ORS
chapters 182, 183, 240, 270, 273, 276, 279, 279A, 279B, 279C,
283, 291, 292, 293, 294 and 297 and ORS 35.550 to 35.575,
180.060, 180.210 to 180.235, 183.710 to 183.725, 183.745,
183.750, 184.305 to 184.345, 190.430, 190.480, 190.490, 192.105,
200.035,
{ - 236.380, - } 243.105 to 243.585, 243.696, 278.011 to
278.120, 278.315 to 278.415, 282.010 to 282.150, 357.805 to
357.895 and 656.017 (2) { - shall - } { + do + } not apply to
the university or any not-for-profit organization or other entity
if the equity of the entity is owned exclusively by the
university and if the organization or entity is created by the
university to advance any of the university's statutory missions.
(3) The university, as a distinct governmental entity, or any
organization or entity described in subsection (2) of this
section
{ - shall not be - } { + is not + } subject to any provision
of law enacted after January 1, 1995, with respect to any
governmental entity, unless the provision specifically provides
that it applies to the university or to the organization or
entity.
SECTION 16. ORS 421.352, as amended by section 279, chapter
794, Oregon Laws 2003, is amended to read:
421.352. (1) The provisions of ORS chapters 182, 183, 240, 270,
273, 276, 279, 279A, 279B, 279C, 283, 291, 292 and 293 and ORS
35.550 to 35.575, 183.710 to 183.725, 183.745, 183.750, 184.345,
190.430, 190.490, 200.035, { - 236.380, - } 236.605 to
236.640, 243.303, 243.305, 243.315, 243.325 to 243.335, 243.345,
243.350, 243.696, 282.010 to 282.150 and 656.017 (2)
{ - shall - } { + do + } not apply to Oregon Corrections
Enterprises.
(2) Oregon Corrections Enterprises { - shall not be - }
{ + is not + } subject to any provision of law enacted after
December 2, 1999, that governs state agencies generally unless
the provision specifically provides that it applies to Oregon
Corrections Enterprises.
SECTION 17. ORS 654.062 is amended to read:
654.062. (1) Every employee should notify the employer of any
violation of law, regulation or standard pertaining to safety and
health in the place of employment when the violation comes to the
knowledge of the employee.
(2) However, any employee or representative of the employee may
complain to the Director of the Department of Consumer and
Business Services or any authorized representatives of the
director of any violation of law, regulation or standard
pertaining to safety and health in the place of employment,
whether or not the employee also notifies the employer.
(3) Upon receiving any employee complaint, the director shall
make such inquiries, inspections and investigations as the
director considers reasonable and appropriate. Where an employee
has complained in writing of an alleged violation and no
resulting citation is issued to the employer, the director shall
furnish to the employee or representative of the employee, upon
written request, a statement of reasons for the decision.
(4) The director shall establish procedures for keeping
confidential the identity of any employee who requests such
protection in writing. Where such a request has been made,
neither a written complaint from an employee, or representative
of the employee, nor a memorandum containing the identity of a
complainant shall be construed as a public record under ORS
192.210 to 192.505 and 192.610 to 192.990.
(5)(a) It is an unlawful employment practice for any person to
bar or discharge from employment or otherwise discriminate
against any employee or prospective employee because such
employee has opposed any practice forbidden by ORS 654.001 to
654.295 and 654.750 to 654.780, made any complaint or instituted
or caused to be instituted any proceeding under or related to ORS
654.001 to 654.295 and 654.750 to 654.780, or has testified or is
about to testify in any such proceeding, or because of the
exercise of such employee on behalf of the employee or others of
any right afforded by ORS 654.001 to 654.295 and 654.750 to
654.780.
(b) Any employee or prospective employee who believes that the
employee has been barred or discharged from employment or
otherwise discriminated against in compensation, or in terms,
conditions or privileges of employment, by any person in
violation of this subsection may, within 30 days after the
employee has reasonable cause to believe that such a violation
has occurred, file a complaint with the Commissioner of the
Bureau of Labor and Industries alleging such discrimination under
the provisions of ORS 659A.820. Upon receipt of such complaint
the commissioner shall process the complaint and case under the
procedures, policies and remedies established by ORS chapter 659A
and the policies established by ORS 654.001 to 654.295 and
654.750 to 654.780 in the same way and to the same extent that
the complaint would be processed by the commissioner if the
complaint involved allegations of unlawful employment practices
{ - based upon race, religion, color, national origin, sex or
age - } under ORS 659A.030 (1)(f). The affected employee shall
also have the right to bring a suit in any circuit court of the
State of Oregon against any person alleged to have violated this
subsection. The commissioner or the circuit court may order all
appropriate relief including rehiring or reinstatement of the
employee to the employee's former position with back pay.
(c) Within 90 days after the receipt of a complaint filed under
this subsection the commissioner shall notify the complainant of
the commissioner's determination under paragraph (b) of this
subsection.
SECTION 18. { + The amendments to ORS 654.062, 659A.012,
659A.030, 659A.403, 659A.406, 659A.409, 659A.421, 659A.424 and
659A.885 by sections 4 to 10, 13 and 17 of this 2005 Act apply to
acts committed on or after the effective date of this 2005
Act. + }
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