68th OREGON LEGISLATIVE ASSEMBLY--1995 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 1242
A-Engrossed
House Bill 3125
Ordered by the Senate June 2
Including Senate Amendments dated June 2
Sponsored by Representative PROZANSKI (at the request of Equal
Justice for All Coalition)
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.
Prohibits { + certain + } employer from discriminating against
employee for engaging or participating in political activities
during employee's own time while off employer's premises.
{ - Prohibits employment discrimination based on employee
becoming candidate for public office. - } Prohibits
{ + certain + } employer from controlling or directing political
activities or affiliations of employee or applicant for
employment. Prohibits coercion or influence of employee to adopt
or refrain from adopting particular course or line of political
action or activity.
Applies to employers with { - one - } { + six + } or more
employees.
{ - Specifies exemptions. - } Specifies penalties. Provides
for compensatory and punitive damages for certain employment
discrimination claims in addition to other remedies available to
employee. Applies only to conduct occurring on or after effective
date of Act.
A BILL FOR AN ACT
Relating to discrimination; creating new provisions; and amending
ORS 659.010 and 659.121.
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. { + Section 2 of this
Act is added to and made a part of ORS 659.010 to 659.110. + }
**************************** SECTION 2. { + (1) It is an
unlawful employment practice for an employer who employs six or
more employees to make, adopt or enforce any rule, regulation or
policy:
(a) Forbidding or preventing an employee from engaging or
participating in politics on the employee's own time while off
the employer's premises; or
(b) Controlling or directing the political activities or
affiliations of any employee or applicant for employment.
(2) It is an unlawful employment practice for an employer who
employs six or more employees to coerce or influence, or attempt
to coerce or influence, an employee through or by means of threat
of discharge or loss of employment to adopt or follow, or refrain
from adopting or following, any particular course or line of
political action or political activity.
(3) Nothing in this section shall be considered to authorize or
permit the use of numerical goals or quotas or other types of
affirmative action programs in order to remedy past or present
discrimination based on political activity or affiliation.
(4) Nothing in this section affects the ability of an employer
to make, adopt or enforce any rule, regulation or policy
otherwise permitted by law relating to an employee becoming a
candidate for public office.
(5)(a) This section does not affect the ability of an employer
to take disciplinary action against an employee by reason of
activities by the employee that violate ORS 260.432 or 260.665 or
5 U.S.C. 1502.
(b) This section does not affect the adoption or enforcement of
rules by employers relating to restrictions or prohibitions on
the time, place and manner of political activity in the workplace
or relating to the posting of materials in the workplace.
(6) This section shall 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 who belongs to the same
religious sect as that of the church or institution or from
discriminating on the basis of sexual practices that violate the
bona fide religious tenets or teachings of the church or
institution when:
(a) In the opinion of such bona fide church or sectarian
religious institution, such a preference or discrimination will
best serve the purposes of such church or institution; and
(b) 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 that has
no necessary relationship to the church or institution or to its
primary purposes.
(7) Any person claiming to be aggrieved by a violation of this
section may file a complaint in the manner described by ORS
659.040 or commence a civil suit under the provisions of ORS
659.121 (2). Upon the filing of a complaint with the Commissioner
of the Bureau of Labor and Industries alleging a violation of
this section, the commissioner shall give written notification to
the Secretary of State. If the Secretary of State believes that
the allegations of the complaint constitute a violation of
election laws that would be subject to criminal penalty under the
provisions of ORS chapter 260, the Secretary of State shall refer
the matter to the Attorney General in the manner provided by ORS
260.345 and the commissioner shall suspend all investigation and
proceedings under ORS 659.050 until completion of any
investigation by the Attorney General or any criminal proceedings
under the provisions of ORS chapter 260. Any period of time
during which the commissioner suspends investigation and
proceedings under the provisions of this subsection shall not be
considered in determining the time limitations imposed by ORS
659.095. + }
**************************** SECTION 3. ORS 659.010 is amended
to read:
659.010. As used in ORS 659.010 to 659.110, 659.400 to 659.460
and 659.505 to 659.545, unless the context requires otherwise:
(1) 'Bureau' means the Bureau of Labor and Industries.
(2) 'Cease and desist order' means an order signed by the
commissioner, taking into account the subject matter of the
complaint and the need to supervise compliance with the terms of
any specific order issued to eliminate the effects of any
unlawful practice found, addressed to a respondent requiring the
respondent to:
(a) Perform an act or series of acts designated therein and
reasonably calculated to carry out the purposes of ORS 30.670 to
30.685, 659.010 to 659.110, 659.400 to 659.460 and 659.505 to
659.545, eliminate the effects of an unlawful practice found, and
protect the rights of the complainant and other persons similarly
situated;
(b) Take such action and submit such designated reports to the
commissioner on the manner of compliance with other terms and
conditions specified in the commissioner's order as may be
required to assure compliance therewith; or
(c) Refrain from any action designated in the order which would
jeopardize the rights of the complainant or other person
similarly situated or frustrate the purpose of ORS 30.670 to
30.685, 659.010 to 659.110, 659.400 to 659.460 and 659.505 to
659.545.
(3) 'Commissioner' means the Commissioner of the Bureau of
Labor and Industries.
(4) 'Conciliation agreement' means a written agreement settling
and disposing of a complaint under ORS 659.010 to 659.110,
659.400 to 659.460 and 659.505 to 659.545 signed by a respondent
and an authorized official of the Bureau of Labor and Industries.
(5) 'Employee' does not include any individual employed by the
individual's parents, spouse or child or in the domestic service
of any person.
(6) 'Employer' means any person, including state agencies,
political subdivisions and municipalities, who in this state,
directly or through an agent, engages or utilizes the personal
service of one or more employees reserving the right to control
the means by which such service is or will be performed.
(7) 'Employment agency' includes any person undertaking to
procure employees or opportunities to work.
(8) 'Entity' includes employers, labor organizations,
employment agencies, places of public accommodation as defined in
ORS 30.675 or vocational, professional or trade schools.
(9)(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
custody, 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.
(10) 'Labor organization' includes any organization which 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.
(11) 'National origin' includes ancestry.
(12) 'Person' includes one or more individuals, partnerships,
associations, corporations, legal representatives, trustees,
trustees in bankruptcy or receivers.
(13) 'Respondent' includes any person or entity against whom a
complaint or charge of unlawful practices is filed with the
commissioner or whose name has been added to such complaint or
charge pursuant to ORS 659.050 (1).
(14) 'Unlawful employment practice' includes only those
unlawful employment practices specified in { + section 2 of this
1995 Act, + } ORS 25.363, 399.235, 654.062 (5), 659.030, 659.035,
659.036, 659.227, 659.270, 659.295, 659.330, 659.340, 659.358 (1)
to (4), 659.360, 659.410, 659.415, 659.420, 659.425 and 659.570.
(15) 'Unlawful practice' means any unlawful employment practice
or any distinction, discrimination or restriction on account of
race, religion, color, sex, marital status or national origin
made by any place of public accommodation as defined in ORS
30.675, by any person acting on behalf of any such place or by
any person aiding or abetting any such place or person in
violation of ORS 30.685, or any violation of ORS 345.240,
659.033, 659.037, 659.430 or rules adopted pursuant to ORS
659.103 (1), but does not include a refusal to furnish goods or
services when the refusal is based on just cause.
**************************** SECTION 4. ORS 659.121 is amended
to read:
659.121. (1) Any person claiming to be aggrieved by an unlawful
employment practice prohibited by ORS 25.363, 399.235, 659.030,
659.035, 659.227, 659.270, 659.295, 659.330, 659.340, 659.410,
659.415, 659.420 or 659.425 may file a civil suit in circuit
court for injunctive relief and the court may order such other
equitable relief as may be appropriate, including but not limited
to reinstatement or the hiring of employees with or without back
pay. Back pay liability shall not accrue from a date more than
two years prior to the filing of a complaint with the
Commissioner of the Bureau of Labor and Industries, pursuant to
ORS 659.040, or if no such complaint has first been filed, then,
more than two years prior to the filing of the civil suit
provided for in ORS 659.040, 659.045, 659.095 and this section.
In any suit brought under this subsection, the court may allow
the prevailing party costs and reasonable attorney fees at trial
and on appeal.
(2) Any person claiming to be aggrieved by alleged violations
of { + section 2 of this 1995 Act, + } ORS { + 659.030 (1), + }
659.033 (1) or (3), 659.295 or 659.400, 659.405, 659.410 (1),
659.415 to 659.435 and 659.550 may file a civil action in circuit
court to recover compensatory damages or $200, whichever is
greater, and punitive damages. In addition, the court may award
relief authorized under subsection (1) of this section and such
equitable relief as it considers appropriate. At the request of
any party, the trial of such case shall be by jury. In any action
brought under this subsection, the court may allow the prevailing
party costs and reasonable attorney fees at trial and on appeal.
Any attorney fee agreement shall be subject to approval by the
court.
(3) Where no complaint has been filed pursuant to ORS 659.040
(1) or 659.045 (1) and except as otherwise provided herein, the
civil suit or action shall be commenced within one year of the
occurrence of the alleged unlawful employment practice. Where a
complaint has been filed pursuant to ORS 659.040 (1) or 659.045
(1) the civil suit or action provided for herein shall be
commenced only in accordance with the time limitations provided
for in ORS 659.095. The filing of a complaint with the
commissioner under ORS 659.040 (1) or 659.045 (1) shall not be a
condition precedent to the filing of civil suit or action under
this section.
(4) This section shall not be construed to limit or alter in
any way the authority or power of the commissioner or to limit or
alter in any way any of the rights of an individual complainant
until and unless the complainant commences civil suit or action.
Except as provided in subsection (5) of this section, the filing
of a civil suit or action in either circuit court pursuant to
subsection (1) of this section or federal district court under
applicable federal law shall constitute both an election of
remedies as to the rights of that individual with respect to
those matters alleged in the complaint filed with the
commissioner, and a waiver with respect to the right to file a
complaint with the commissioner pursuant to ORS 659.040 (1) or
659.045 (1).
(5)(a) Where a person claiming to be aggrieved by alleged
violations of ORS 659.033 or 659.430 or applicable federal law
files a civil suit or action in circuit court or in federal
district court, that filing does not constitute an election of
remedies until such time as the trial commences.
(b) An aggrieved person may not commence a civil action under
this subsection with respect to an alleged discriminatory housing
practice which forms the basis of specific charges issued by the
commissioner if a hearings referee has commenced a hearing on the
record under this chapter with respect to such charge.
(6) Notwithstanding any other provision of ORS 659.010 to
659.121, a civil complaint alleging violations of ORS 659.033 or
659.430 may be filed not later than two years after the
occurrence or the termination of an alleged discriminatory
housing practice, or the breach of a conciliation agreement
entered into under ORS 659.010 to 659.121, whichever occurs last.
The two-year period shall not include any time during which an
administrative proceeding was pending with respect to the housing
practice or breach.
**************************** SECTION 5. { + Section 2 of this
Act and the amendments to ORS 659.121 by section 4 of this Act
apply only to conduct of an employer occurring on or after the
effective date of this Act. + }
**************************** SECTION 6. { + The remedies
provided by the amendments to ORS 659.121 by section 4 of this
Act are in addition to any common law remedy or other remedy that
may be available to an employee for the conduct that gives rise
to a cause of action under the provisions of ORS 659.121. + }
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