Chapter 659A

 

      659A.001

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.010)

 

      Person holding majority ownership and exercising control over daily operation of employer is agent, not alter ego, of employer. Ballinger v. Klamath Pacific Corp., 135 Or App 438, 898 P2d 232 (1995), Sup Ct review denied

 

      659A.003

(formerly 659.022)

 

NOTES OF DECISIONS

 

      Under this section, legislature intended to provide “adequate remedy for persons aggrieved by certain acts of discrimination” and compensatory damages were appropriate remedy where evidence was sufficient to affirm Commissioner of Labor’s award for humiliation caused by racial discrimination in employment. Fred Meyer v. Bureau of Labor, 39 Or App 253, 592 P2d 564 (1979), Sup Ct review denied

 

      659A.006

(formerly 659.020)

 

ATTY. GEN. OPINIONS: Receipt of state money for services of religious organization providing family counseling, (1982) Vol 43, p 11

 

LAW REVIEW CITATIONS: 84 OLR 725 (2005)

 

      659A.009

(formerly 659.015)

 

NOTES OF DECISIONS

 

      Evidence that employer would not consider qualifications of applicant for beauty shop position because she was “too young” for elderly clientele was sufficient to support Labor Commissioner’s conclusion that employer discriminated against her “solely because of” her age, and thus committed unlawful employment practice. Ogden v. Bureau of Labor, 299 Or 98, 699 P2d 189 (1985)

 

      659A.029

(formerly 659.029)

 

NOTES OF DECISIONS

 

      This section was not preempted by federal Employee Retirement Income Security Act. Gast v. State of Oregon, 36 Or App 441, 585 P2d 12 (1978), Sup Ct review denied

 

      Because this section’s term “person engaged in a business” did not include municipalities, city’s failure to file joint declaration of independent contractor status did not render claimant its employe. City of Portland v. Thomas, 81 Or App 642, 726 P2d 965 (1986), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Discrimination on basis of pregnancy in employment not governed by Federal Employee Retirement Income Security Act, (1978) Vol 38, p 1802

 

      659A.030

(formerly 659.030)

 

NOTES OF DECISIONS

 

      There is no ambiguity requiring the commissioner to issue a rule defining the terms of statute in order for him to issue Cease and Desist Order based upon it. Sterling v. Klamath Forest Protective Assn., 19 Or App 383, 528 P2d 574 (1974)

 

      The exception of “bona fide occupational requirement reasonably necessary to normal operation of employer’s business” must not be unduly limited but must be construed fairly by giving it usual, normal and evenhanded application. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

 

      In proving a “bona fide occupational requirement,” employer’s burden of proof is by preponderance or outweighing of evidence. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

 

      Under evidence that college informed art instructor applicant that if she persisted in discrimination complaint, she would not be considered for future openings and that college failed to consider her for later opening for which she was qualified, it was permissible inference that this constituted prohibited retaliatory action. Lewis and Clark College v. Bureau of Labor, 43 Or App 245, 602 P2d 1161 (1979), Sup Ct review denied

 

      Under former version of this section, evidence supported Labor Commissioner’s finding that maximum hiring age of 36 was not bona fide requirement for employment of fire dispatchers. Clackamas Co. Fire Protection Dist. v. Bureau of Labor, 50 Or App 337, 624 P2d 141 (1981), Sup Ct review denied

 

      That employer attempted to rehire previously laid-off male employe, would not establish unlawful discrimination against female applicant unless it could be demonstrated that offer to rehire was based upon an intent on employer’s part to avoid hiring female applicant. Brady v. Bureau of Labor, 55 Or App 619, 639 P2d 673 (1982)

 

      Evidence that female city employee was put in lower classification and given lower wage for performing essentially same duties as her male counterparts afforded rational basis for decision by State Commissioner of Labor finding unlawful disparity of pay by reason of sex. City of Portland v. Bureau of Labor and Ind., 298 Or 104, 690 P2d 475 (1984)

 

      In determining whether blanket hiring age limitation for firefighters was bona fide occupational requirement under this section, Labor Commissioner’s consideration of public safety, relationship of chronological age to job performance and practicability of individually screening applicants for physical qualifications was proper. Civil Service Board of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

 

      Blanket hiring age limitation for firefighters was not bona fide occupational requirement reasonably necessary to operation of Fire Bureau. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

 

      Operation of this section to invalidate discriminatory city charter provision limiting hiring age of firefighters does not violate “home rule” amendments of Oregon Constitution. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

 

      Economic justifications for discrimination, such as adverse impact on pension and disability plans, are not to be included as bona fide occupational requirements reasonably necessary to employer’s business. Civil Service Bd. of Portland v. Bureau of Labor, 298 Or 307, 692 P2d 569 (1984)

 

      Where court ruled that plaintiff failed to allege intentional discrimination because of sex, defendant’s motion to dismiss plaintiff’s claims under this section was granted with leave to amend. Forsberg v. Pacific Northwest Bell Telephone Co., 623 F Supp 117 (1985)

 

      Employer’s health plan, providing less medical coverage for female employe’s pregnancy than provided for pregnancy of male employe’s wife, violated this section. Hillesland v. Paccar, Inc., 80 Or App 286, 722 P2d 1239 (1986), Sup Ct review denied

 

      National Labor Relations Act does not preempt plaintiff’s state statutory claim for sex discrimination. Munsey v. Plumbers’ Local #51, 85 Or App 396, 736 P2d 615 (1987)

 

      Where action was brought for wrongful discharge and former employer made motion to dismiss wrongful discharge claim for intentional infliction of emotional distress, since claim did not rest on same factual basis as age discrimination claim, claim not barred under Oregon law. Malone v. Safeway Stores, Inc., 698 F Supp 207 (D. Or. 1987)

 

      Discrimination statute does not preempt tort of intentional infliction of emotional distress. Palmer v. Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988)

 

      Where discharged employee brought age discrimination action against employer, fact that all four of employees terminated after “government work” investigation were over age of 40 is insufficient evidence to establish a disparate impact claim based upon age discrimination in absence of evidence that hourly workers under age of 40 who engaged in similar degree of “government work” were spared from discharge and motion for summary judgment granted. John v. Georgia-Pacific Corp., 697 F Supp 1156 (D. Or. 1988)

 

      Where employer and union entered collective bargaining negotiations and created new position for mechanized loop testing, it did not violate this section in paying woman less than men in prior similar position of test desk technician. Forsberg v. Pacific Northwest Bell Telephone Co., 840 F2d 1409 (1988)

 

      Where terminated employee sued former employer for wrongful discharge alleging employer violated covenants of good faith and fair dealing in express and implied employment contract, termination of employee in order to deprive employee of benefits to which employee would otherwise have become entitled if employment continued is breach of obligation to perform in good faith. Messer v. Portland Adventist Medical Center, 707 F Supp 449 (D. Or. 1989)

 

      Where defendant’s adverse actions were substantial factor in deterioration of plaintiff’s health and plaintiff left employment because of defendant’s retaliation, plaintiff was constructively discharged in violation of this section. Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (1990)

 

      Discharge because of pregnancy does not state claim of wrongful discharge, but is unlawful act of sex discrimination. Cross v. Eastlund, 103 Or App 138, 796 P2d 1214 (1990), Sup Ct review denied

 

      Plaintiff who resigns from employment must establish constructive discharge by showing that defendant deliberately created or maintained working conditions with purpose of forcing her to resign. Bell v. First Interstate Bank, 103 Or App 165, 796 P2d 1226 (1990)

 

      Isolated instances of racial discrimination by employees that do not result from employer policy do not establish continuing violation. Bell v. First Interstate Bank, 103 Or App 165, 796 P2d 1226 (1990)

 

      Multiple family members allegedly fired in retaliation for one family member’s behavior have no derivative wrongful discharge claim. Carlson v. Crater Lake Lumber Co., 103 Or App 190, 796 P2d 1216 (1990), as modified by 105 Or App 314, 804 P2d 511 (1991)

 

      Where allegation is retaliatory termination, there is no common law course of action for wrongful termination because this section provides plaintiff with adequate remedy. Rice v. Comtek Mfg. of Oregon, Inc., 766 F Supp 1544 (1990)

 

      Racial epithets by one employee did not constitute pervasive workplace harassment subjecting employer to liability for maintaining racially hostile work environment. Haskins v. Owens-Corning Fiberglas Corp., 811 F Supp 534 (1992)

 

      Rule that allows religious advances to constitute discrimination where employer is motivated by fact that employee has different religious beliefs does not exceed agency authority. Meltebeke v. Bureau of Labor and Industries, 120 Or App 273, 852 P2d 859 (1993), aff’d 322 Or 132, 903 P2d 351 (1995)

 

      Claim of sexual advances or sexual harassment by supervisor was adequate pleading of discrimination to support claim for intentional infliction of emotional distress and wrongful discharge. McGanty v. Staudenraus, 123 Or App 393, 859 P2d 1187 (1993), aff’d 321 Or 532, 901 P2d 841 (1995)

 

      Standard for determining employer responsibility for hostile work environment by supervisor is whether employer knew or should have known of harassment and failed to take prompt remedial action against supervisor. Mains v. II Morrow, Inc., 128 Or App 625, 877 P2d 88 (1994)

 

      Pervasive and severe conduct by employer regarding statutorily protected area that intentionally causes intimidating, hostile or offensive working environment is discrimination in terms of employment. Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 903 P2d 351 (1995)

 

      Discriminatory action by agent acting within scope of authority is act of employer. Schram v. Albertson’s, Inc., 146 Or App 415, 934 P2d 483 (1997)

 

      Discrimination based upon sex of any person with whom person associates includes discrimination based upon sexual orientation of person. Tanner v. OHSU, 157 Or App 502, 971 P2d 435 (1998)

 

      Employer conduct does not need to be sexual in nature to constitute discrimination because of employee’s sex. A.L.P. Incorporated v. Bureau of Labor and Industries, 161 Or App 417, 984 P2d 883 (1999)

 

      Sexual harassment by person of same gender may form basis for discrimination claim. Harris v. Pameco Corp., 170 Or App 164, 12 P3d 524 (2000)

 

      Provision in collective bargaining agreement that deters employees from attempt to pursue statutorily protected right to seek judicial or administrative resolution of grievance related to collective bargaining agreement violation is retaliatory and unlawfully discriminatory. PSU Association of University Professors v. PSU, 352 Or 697, 291 P3d 658 (2012)

 

      Person who was sole decision-maker and who acted within course and scope of authority as owner and managing director when person terminated plaintiff’s employment cannot be individually liable as to plaintiff’s retaliation claims based on aiding and abetting under this section. Aichele v. Blue Elephant Holdings, LLC, 292 F. Supp. 3d 1104 (D. Or. 2017)

 

ATTY. GEN. OPINIONS: Constitutionality of mortality tables which differentiate between males and females, (1973) Vol 36, p 449; passing increased health insurance premiums resulting from pregnancy coverage on to women employes, (1978) Vol 39, p 328; subject employers providing medical benefits for pregnancy, childbirth or related medical conditions for wives of male employes equal to medical benefits provided for husbands of female employes, (1980) Vol 40, p 231; refusal to employ individual in particular department of employer solely because individual’s spouse already employed in department, (1980) Vol 40, p 259

 

LAW REVIEW CITATIONS: 75 OLR 633, 1253, 1333 (1996); 36 WLR 503 (2000); 79 OLR 721 (2000); 84 OLR 725 (2005); 50 WLR 195 (2014)

 

      659A.040

 

NOTES OF DECISIONS

 

      Where employer knows that worker has occupational injury or disease, knowledge constitutes worker invocation of worker’s compensation procedure, even if worker has not given written notice that is required to perfect claim. Herbert v. Altimeter, Inc., 230 Or App 715, 218 P3d 542 (2009)

 

      659A.043

(formerly 659.415)

 

NOTES OF DECISIONS

 

      Where telephone company discharged compensably injured employe prior to her demand for reinstatement, she was entitled to seek injunctive relief under this section and was not limited to or required to exhaust remedies provided by collective bargaining agreement. Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 611 P2d 281 (1980); Faris v. Gamble, Inc., 133 Or App 221, 889 P2d 1363 (1995)

 

      Prevailing defendant in action pursuant to this section is entitled to award of attorney fees only if claim is brought in bad faith, is unreasonable or groundless or if plaintiff persists in litigating claim after it becomes evident claim is unreasonable or unfounded. Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981)

 

      Where employer has hired another employe to fill position during absence of worker who exercised rights under Workers’ Compensation Law, employer must nevertheless, under this section, reinstate worker to former position of employment. Shaw v. Doyle Milling Co., 297 Or 251, 683 P2d 82 (1984)

 

      Right to demand reinstatement survives interim discharge occurring before worker demands reinstatement and is refused by employers, where, under terms of statute, worker is entitled to assert statutory right, and unlawful employment practice claim for nonreinstatement accrues and time limitation begins to run when worker is able to return to work. Williams v. Waterway Terminals Co., 298 Or 506, 693 P2d 1290 (1984)

 

      On remand, this section did not require employer, when employee returned to work after compensable injury, to reinstate employee to his former position, when position had been filled during employee’s absence. Janzen v. Sunriver Lands, Inc., 89 Or App 51, 747 P2d 378 (1987)

 

      Legislature intended that reinstatement be required only where that position is existing and vacant. Knapp v. City of North Bend, 304 Or 34, 741 P2d 505 (1987)

 

      In wrongful discharge action, discrimination on employer’s part can be established by proof of discriminatory motivation whether or not employer’s conduct violated this section. Palmer v. Central Oregon Irrigation Dist., 91 Or App 132, 754 P2d 601 (1988), Sup Ct review denied

 

      Although defendants did not reinstate plaintiff to former position as deputy sheriff after she sustained compensable injury, they did not violate this section because evidence showed that plaintiff was not physically capable of performing duties of position. Blumhagen v. Clackamas County, 91 Or App 510, 756 P2d 650 (1988), Sup Ct review denied

 

      Where Workers’ Compensation Board’s finding of permanent partial disability did not squarely establish plaintiff’s inability to perform his old job, trial court improperly granted employer’s motion for summary judgment on basis of preclusion in plaintiff’s action of reinstatement under this section. Chavez v. Boise Cascade Corporation, 307 Or 632, 772 P2d 409 (1989)

 

      Where there was reasonable probability that employee was unable to perform work duties without endangering himself or others, employer did not commit unlawful employment practice by discharging him because of mental impairment. Welch v. Champion International Corp., 101 Or App 511, 791 P2d 152 (1990)

 

      Reinstatement rights under this section do not arise if employer establishes that worker was discharged from worker’s pre-injury position for reasons unrelated to injury or to corresponding workers’ compensation claim. Lane County v. State of Oregon, 104 Or App 372, 801 P2d 870 (1990), Sup Ct review denied

 

      Cause of action arises at time employer fails to offer reinstatement, not at time worker demands reinstatement. Barnes v. City of Portland, 120 Or App 24, 852 P2d 265 (1993), Sup Ct review denied

 

      Right of employee to reinstatement following injury is independent of injury being found compensable for workers’ compensation benefits. Armstrong v. Rogue Federal Credit Union, 328 Or 154, 969 P2d 382 (1998)

      For purpose of determining date on which right to reinstatement to worker’s former position terminates, date of injury is date on which worker suffered compensable injury that triggers right to reinstatement. Petock v. Asante, 237 Or App 113, 240 P3d 56 (2010), on reconsideration 238 Or App 711, 243 P3d 822 (2010), aff’d 351 Or 408, 268 P3d 579 (2011)

 

      Violation of this statute constitutes reprehensible conduct for purpose of determining amount of punitive damages. Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526, 246 P3d 1121 (2011)

 

      Whether worsening of worker’s condition is compensable injury depends on whether trier of fact finds that condition is compensable within meaning of ORS 656.005. Petock v. Asante, 351 Or 408, 268 P3d 579 (2011)

 

ATTY. GEN. OPINIONS: Temporarily disabled worker’s right to reinstatement with full seniority more than year after disabling injury where collective bargaining agreement provides otherwise, (1980) Vol 40, p 483

 

LAW REVIEW CITATIONS: 27 WLR 106 (1991)

 

      659A.046

(formerly 659.420)

 

NOTES OF DECISIONS

 

      Employer’s duty under this section expired once it had offered suitable position to injured worker. Carney v. Guard Publishing Co., 48 Or App 147, 616 P2d 548 (1980), Sup Ct review denied, as modified by 48 Or App 927, 630 P2d 867 (1980)

 

      Community Service Officer position, though not equivalent to deputy sheriff position, was “available and suitable” and once position was offered duties pursuant to this section expired. Blumhagen v. Clackamas County, 91 Or App 510, 756 P2d 650 (1988), Sup Ct review denied

 

      Bureau of Labor and Industries rule provides practical interpretation of statutory term “suitable.” Robinson v. School District No. 1, 92 Or App 627, 759 P2d 1116 (1988)

 

      Reinstatement rights under this section do not arise if employer establishes that worker was discharged from worker’s pre-injury position for reasons unrelated to injury or to corresponding workers’ compensation claim. Lane County v. State of Oregon, 104 Or App 372, 801 P2d 870 (1990), Sup Ct review denied

 

      Statute of limitations begins to run under this section when worker who has made demand in accordance with administrative scheme knows or should know that work is available and suitable. Kraxberger v. Chevron USA, Inc., 118 Or App 686, 848 P2d 1242 (1993)

 

      “Employment” and “work” refer to specific position or job, not entire profession or job classification. Anglin v. Dept. of Corrections, 160 Or App 463, 982 P2d 547 (1999), Sup Ct review denied

 

      For purpose of determining date on which right to reemployment terminates, date of injury is date on which worker suffered compensable injury that triggers right to reemployment. Petock v. Asante, 237 Or App 113, 240 P3d 56 (2010), on reconsideration 238 Or App 711, 243 P3d 822 (2010), aff’d 351 Or 408, 268 P3d 579 (2011)

 

      659A.100

 

      See annotations under ORS 659A.122.

 

      659A.109

(formerly 659.410)

 

NOTES OF DECISIONS

 

      Factfinder could believe evidence showing that plaintiff was fired by defendant because he had lied about his disability status and extent of his ability to work and not because plaintiff filed workers’ compensation claim. Ledesma v. Freightliner Corp., 97 Or App 379, 776 P2d 43 (1989)

 

      Where terminated employee sued former employer for wrongful discharge alleging employer violated covenants of good faith and fair dealing in express and implied employment contract, termination of employee in order to deprive employee of benefits to which employee would otherwise have become entitled if employment continued is breach of obligation to perform in good faith. Messer v. Portland Adventist Medical Center, 707 F Supp 449 (D. Or. 1989)

 

      Prima facie case of retaliatory discharge is established by proving: 1) plaintiff invoked workers’ compensation system; 2) plaintiff was discriminated against in tenure, terms or conditions of employment; and 3) that discrimination was result of plaintiff invoking system. Stanich v. Precision Body and Paint, Inc., 151 Or App 446, 950 P2d 328 (1997)

 

      “Invoking” of procedures provided for in ORS chapter 656 includes worker’s reporting of on-the-job injury or perception by employer that worker has been injured on job or will report injury. McPhail v. Milwaukie Lumber Company, 165 Or App 596, 999 P2d 1144 (2000)

 

      Claimant alleging mixed motive for termination is subject to same evidentiary burden that applies where plaintiff alleges motive for termination is pretext. Hardie v. Legacy Health System, 167 Or App 425, 6 P3d 531 (2000), Sup Ct review denied

 

      Statute protects from retaliation employee who applies for benefits or invokes or utilizes procedures prohibiting discrimination against employees even if employee is not disabled. Herbert v. Altimeter, Inc., 230 Or App 715, 218 P3d 542 (2009)

 

      659A.112

 

NOTES OF DECISIONS

 

      Plaintiff must first meet burden of demonstrating that reasonable accommodation is available before employer has burden of demonstrating that accommodation would impose undue hardship on employer. Honstein v. Metro West Ambulance Service, Inc., 193 Or App 457, 90 P3d 1030 (2004), Sup Ct review denied

 

      Whether individual is disabled person is determined in light of mitigating measures available to counteract or ameliorate individual’s impairment. Washburn v. Columbia Forest Products, Inc., 340 Or 469, 134 P3d 161 (2006)

 

      Protections from employment discrimination do not apply to employee against whom adverse action is taken where employee uses medical marijuana. Emerald Steel Fabricators, Inc. v. BOLI, 348 Or 159, 230 P3d 518 (2010)

 

      659A.115

 

NOTES OF DECISIONS

 

      For purposes of determining whether person can perform essential functions of position, relevant position consists only of individual posts or combination of posts sought by applicant or employee. Evans v. Multnomah County Sheriff’s Office, 184 Or App 733, 57 P3d 211 (2002), Sup Ct review denied

 

      659A.122

 

(formerly 659.400, then 659A.100)

 

NOTES OF DECISIONS

 

      As major life activity, “employment” means work involved rather than employment in general or specific position. Winnett v. City of Portland, 118 Or App 437, 847 P2d 902 (1993)

 

      Whether individual is disabled person is determined in light of mitigating measures available to counteract or ameliorate individual’s impairment. Washburn v. Columbia Forest Products, Inc., 340 Or 469, 134 P3d 161 (2006)

 

      Driving, by itself, is not a “major life activity.” Livingston v. Fred Meyer Stores, Inc., 567 F. Supp. 2d 1265 (D. Or. 2008)

 

      Exclusion for drugs taken under supervision of licensed health care professional from definition for “illegal use of drugs” does not apply to use of medical marijuana. Emerald Steel Fabricators, Inc. v. BOLI, 348 Or 159, 230 P3d 518 (2010)

 

LAW REVIEW CITATIONS: 16 WLR 535 (1979); 22 WLR 529, 542 (1986)

 

      659A.124

 

NOTES OF DECISIONS

 

      Protections from employment discrimination do not apply to employee against whom adverse action is taken where employee uses medical marijuana. Emerald Steel Fabricators, Inc. v. BOLI, 348 Or 159, 230 P3d 518 (2010)

 

      659A.136

 

NOTES OF DECISIONS

 

      Employers may use reasonable means to ascertain cause of troubling employee behavior without exposing themselves to liability for disability discrimination. Heiple v. Henderson, 229 Or App 693, 215 P3d 891 (2009)

 

      659A.142

(formerly 659.425)

 

NOTES OF DECISIONS

 

      This section imposes upon employer obligation not to reject prospective employe because of physical or mental handicap, unless there is, because of the defect, probability either that employe cannot do job in satisfactory manner or that he can do so only at risk of incapacitating himself. Montgomery Ward v. Bureau of Labor, 280 Or 163, 570 P2d 76 (1977)

 

      In determining whether a particular handicap prevents performance of work involved, applicable standard is “probability of incapacitation” and it is to be determined at time of rejection and not on the basis of increased risk of incapacitation in future. Pacific Motor Trucking Co. v. Bureau of Labor, 64 Or App 361, 668 P2d 446 (1983), Sup Ct review denied

 

      Private transportation company is prohibited by this section from refusing transportation to individual because of confinement to wheelchair. Bush v. Greyhound Lines, Inc., 295 Or 619, 669 P2d 324 (1983)

 

      Count I of complaint alleging that plaintiff had record of diabetes, high blood pressure and obesity was correctly dismissed where plaintiff failed to allege that conditions substantially limited him in major life activity; count II alleging same conditions and that defendant “regarded plaintiff as having an impairment that would prevent him from being employed” states cause of action under paragraph (1)(c) of this section. Devaux v. State of Oregon, 68 Or App 322, 681 P2d 156 (1984)

 

      Under [former] ORS 659.400, employment is major life activity and it was clear that, because of his color vision, plaintiff’s employment opportunity in engine service with railroad had been limited. Quinn v. Southern Pacific Transportation Co., 76 Or App 617, 711 P2d 139 (1985), Sup Ct review denied

 

      Employe, suffering from diabetic and hyperthyroid condition, was, under facts of case, not discharged in response to his disability but in response to the uncontrollable behavior that resulted therefrom and employer had reasonable basis to conclude that employe could not perform his job duties without probability of harm to himself and others. Pannel v. Wanke Panel Co., 618 F Supp 41 (1985)

 

      Where, under preponderance of evidence, there was no reasonable probability employe was unable to perform work duties, employment discharge because of physical impairment was unlawful employment practice under this section. Brown v. City of Portland, 80 Or App 464, 722 P2d 1282 (1986), Sup Ct review denied

 

      Although defendants had affirmative duty pursuant to this section to make “reasonable accommodation” for plaintiff’s physical impairment, they did not violate this duty by failing to allow plaintiff to permanently occupy one of limited number of rotating positions because to do so would have imposed “undue hardship” on program involved. Blumhagen v. Clackamas County, 91 Or App 510, 756 P2d 650 (1988), Sup Ct review denied

 

      This section, which makes firing employe because of physical impairment unlawful where with reasonable accommodation by employer individual could perform work involved was not inextricably intertwined with consideration of terms in labor contract and created mandatory and independent state right not preempted by section 301 of Labor Management Relations Act. Miller v. AT&T Network Systems, 850 F2d 543 (1988)

 

      Where handicapped employee brought action against employer under California Fair Employment and Housing Act for illegal discharge, claim not preempted by Section 301 of Labor Management Relations Act because claim does not require interpretation of collective bargaining agreement. Ackerman v. Western Elec. Co., Inc., 860 F2d 1514 (9th Cir. 1988)

 

      Employer violates this section if it discriminates against employee on basis of what it perceives to be impairment that substantially limits major life activity and employee does not actually have condition perceived. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 780 P2d 743 (1989), Sup Ct review denied

 

      Where plaintiff alleged that her pregnancy did not impair her ability to do her job but that employer regarded it as such an impairment, plaintiff did not fail to state claim. Melvin v. Kim’s Restaurant, Inc., 308 Or 177, 776 P2d 1286 (1989)

 

      Where there was reasonable probability that employee was unable to perform work duties without endangering himself or others, employer did not commit unlawful employment practice by discharging him because of mental impairment. Welch v. Champion International Corp., 101 Or App 511, 791 P2d 152 (1990)

 

      Employer is not required to accommodate employee’s physical or mental impairment due to alcoholism, if employee denies such impairment. Braun v. American International Health, 315 Or 460, 846 P2d 1151 (1993)

 

      Claims based on failure to make reasonable accommodation are subject to government liability limitations of [former] ORS 30.270. Griffin v. Tri-Met, 318 Or 500, 870 P2d 808 (1994)

 

      “Employment” refers to specific position or job, not entire profession or job classification. Anglin v. Dept. of Corrections, 160 Or App 463, 982 P2d 547 (1999), Sup Ct review denied

 

LAW REVIEW CITATIONS: 16 WLR 541 (1979); 22 WLR 529, 532 (1986); 23 WLR 529, 578 (1987)

 

      659A.150 to 659A.186

 

NOTES OF DECISIONS

 

      Termination of employment in retaliation for invoking Oregon Family Leave Act rights constitutes wrongful discharge in violation of public policy. Yeager v. Providence Health System Oregon, 195 Or App 134, 96 P3d 862 (2004), Sup Ct review denied

 

      659A.150

(formerly 659.470)

 

NOTES OF DECISIONS

 

      For purpose of identifying serious health condition, “constant care” is equivalent to term “continuing treatment” as used in federal Family Medical Leave Act of 1993. Centennial School District No. 28J v. Bureau of Labor and Industries, 169 Or App 489, 10 P3d 945 (2000), Sup Ct review denied

 

      659A.159

(formerly 659.476)

 

NOTES OF DECISIONS

 

      “Essential functions” of position may include ability to perform work at specific work site. Centennial School District No. 28J v. Bureau of Labor and Industries, 169 Or App 489, 10 P3d 945 (2000), Sup Ct review denied

 

      659A.174

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.360)

 

      Only limit on right to use sick leave during parental leave is that sick leave has accrued. PGE v. Bureau of Labor and Industries, 116 Or App 356, 842 P2d 419 (1992), aff’d 317 Or 606, 859 P2d 1143 (1993)

 

      659A.186

 

NOTES OF DECISIONS

 

      Federal McDonnell Douglas standard applies equally to Family Medical Leave Act claim and Oregon Family Leave Act claim. Shepard v. City of Portland, 829 F. Supp. 2d 940 (D. Or. 2011)

 

      659A.199

 

NOTES OF DECISIONS

 

      To establish prima facie case of retaliation, plaintiff must establish that (1) plaintiff engaged in protected activity; (2) plaintiff suffered adverse employment decision; and (3) there is a causal link between protected activity and adverse employment decision. Neighorn v. Quest Health Care, 870 F. Supp. 2d 1069 (D. Or. 2012)

 

      To establish causation between protected activity and adverse employment decision, plaintiff must establish that protected activity was substantial factor in motivating employer’s decision. Larmanger v. Kaiser Foundation Health Plan of the Northwest, 895 F. Supp. 2d 1033 (D. Or. 2012)

 

      This section extends whistleblowing protections to private sector employees; this section does not apply to public employers. Lindsey v. Clatskanie People’s Utility District, 140 F. Supp. 3d 1077 (D. Or. 2015)

 

      As used in this section, “reported” means report of information to either external or internal authority. Brunozzi v. Cable Communications Inc., 851 F3d 990 (9th Cir. 2017)

 

      Where plaintiff shows plaintiff’s protected characteristic caused discrimination, wrongful motives of subordinate may be imputed to independent decision maker; plaintiff need not prove decision maker had protected characteristic in mind when making adverse employment decision. Ossanna v. Nike, Inc., 290 Or App 16, 415 P3d 55 (2018)

 

      659A.200

 

NOTES OF DECISIONS

 

      “Employed by” means having one’s personal services engaged or used by employer, with employer reserving right to control means by which such service is or will be performed; “under contract with” means providing services to employer, but not being subject to employer’s control over method by which services are provided. Dinicola v. State of Oregon, 280 Or App 488, 382 P3d 547 (2016), Sup Ct review denied

 

      Where plaintiff remained on state payroll while on leave from state after assuming full-time duties as president of union and union reimbursed state for state’s payments to plaintiff, plaintiff was not employed by or under contract with state for purposes of this section. Dinicola v. State of Oregon, 280 Or App 488, 382 P3d 547 (2016), Sup Ct review denied

 

      659A.203

 

NOTES OF DECISIONS

 

      “Disclosure” of information includes report of wrongdoing that is circulated solely within agency or department. Bjurstrom v. Oregon Lottery, 202 Or App 162, 120 P3d 1235 (2005)

 

      “Mismanagement” means serious agency misconduct having the effect of actually or potentially undermining ability of agency to fulfill its public mission. Bjurstrom v. Oregon Lottery, 202 Or App 162, 120 P3d 1235 (2005)

 

      Where plaintiff, labor relations director and affirmative action officer employed by defendant community college, reported violations of federal and state laws and internal policies and procedures as well as misuse of funds, this section applies to plaintiff because section is not limited to providing less protection to employee whose job may involve regularly reporting on matters within scope of this section than to other employees. Harper v. Mt. Hood Community College, 283 Or App 207, 388 P3d 1170 (2016)

 

      Employee’s reports to another employee of unlawfulness of that other employee’s conduct without threatening to reveal that conduct to anyone else does not constitute “disclosure” under this section and therefore is not protected activity. Lindsey v. Clatskanie People’s Utility District, 140 F. Supp. 3d 1077 (D. Or. 2015)

 

      659A.206

(formerly 659.515)

 

NOTES OF DECISIONS

 

      Statutory right of action for discrimination against employee whistleblower does not prevent employee from bringing common law action for wrongful discharge. Olsen v. Deschutes County, 204 Or App 7, 127 P3d 655 (2006), Sup Ct review denied

 

      659A.215

(formerly 659.530)

 

NOTES OF DECISIONS

 

      Punitive damages are not remedy available under [former] ORS 659.035 for violation of [former] ORS 659.510. Draper v. Astoria School District No. 1C, 995 F. Supp. 1122 (D. Or. 1998)

 

      659A.230

 

NOTES OF DECISIONS

 

      To be protected for reporting criminal activity, employee must believe that subject matter of report involves criminal conduct at time that report is made. Roberts v. Oregon Mutual Insurance Co., 242 Or App 474, 255 P3d 628 (2011), Sup Ct review denied

 

      To establish prima facie case of retaliation, plaintiff must establish that (1) plaintiff engaged in protected activity; (2) plaintiff suffered adverse employment decision; and (3) there is a causal link between protected activity and adverse employment decision. Neighorn v. Quest Health Care, 870 F. Supp. 2d 1069 (D. Or. 2012)

 

      To establish causation between protected activity and adverse employment decision, plaintiff must establish that protected activity was substantial factor in motivating employer’s decision. Larmanger v. Kaiser Foundation Health Plan of the Northwest, 895 F. Supp. 2d 1033 (D. Or. 2012)

 

      Where plaintiff, employed by defendant as in-home personal assistant who performed domestic and other tasks for defendant, reported defendant’s possession and display of child pornography to law enforcement and assisted in investigation resulting in defendant’s conviction, was fired from employment, plaintiff was not required to show plaintiff met definition of employee in ORS 659A.001 to prevail on claim for wrongful discharge for plaintiff’s fulfillment of important public duty. McManus v. Auchincloss, 271 Or App 765, 353 P3d 17 (2015), Sup Ct review denied

 

      Under plain meaning of this section, former employee cannot bring claim as “employee.” Howard v. City of Coos Bay, 871 F3d 1032 (9th Cir. 2017)

 

      659A.233

(formerly 659.035)

 

NOTES OF DECISIONS

 

      Plaintiff’s allegation that she was discharged for fulfilling societal obligation of reporting violations of state law states claim for wrongful discharge which is not abrogated by this section because there is no indication legislature was even aware of any common law right of action for retaliatory discharge and because statutory remedy is inadequate in failing to compensate plaintiff for personal injuries resulting from discharge. McCool v. Hillhaven Corp., 97 Or App 536, 777 P2d 1013 (1989), Sup Ct review denied

 

      Protection afforded to employee who “has testified in good faith” at employment hearing applies only if employee actually performed act of testifying. Shuler v. Distribution Trucking Co., 164 Or App 615, 994 P2d 167 (1999), Sup Ct review denied

 

      Statutory right of action for discrimination against reporting employee does not prevent employee from bringing common law action for wrongful discharge. Olsen v. Deschutes County, 204 Or App 7, 127 P3d 655 (2006), Sup Ct review denied

 

      659A.250 to 659A.262

(formerly 659.280 to 659.290)

 

LAW REVIEW CITATIONS: 26 WLR 394-395 (1990)

 

      659A.253

(formerly 659.285)

 

NOTES OF DECISIONS

 

      Landowner may verify fact that person coming on property has been invited by resident by requiring invitee to reveal source of invitation. Martinez v. Tankersley, 92 Or App 526, 759 P2d 323 (1988)

 

      659A.300

(formerly 659.227)

 

NOTES OF DECISIONS

 

      When company required employes involved in accidents to be tested for alcohol if company had reasonable cause to believe that worker was under influence of alcohol and company had instructed supervisors of signs to look for, program did not violate worker’s compensation or breathalyzer statute. Association of Western Pulp and Paper Workers v. Boise Cascade Corp., 644 F. Sup 183 (1986)

 

      659A.309

(formerly 659.131, then 659.340)

 

ATTY. GEN. OPINIONS: Refusal to employ individual in particular department of employer solely because individual’s spouse already employed in department, (1980) Vol 40, p 259

 

      659A.321

(formerly 659.028)

 

NOTES OF DECISIONS

 

      “Subterfuge” to evade purposes of employment statutes requires intentional conduct. Tanner v. OHSU, 157 Or App 502, 971 P2d 435 (1998)

 

ATTY. GEN. OPINIONS: Constitutionality of mortality tables which differentiate between males and females, (1973) Vol 36, p 449

 

      659A.400

(formerly 30.675)

 

NOTES OF DECISIONS

 

      The term, “place of public accommodation,” was not intended to include the Boy Scouts of America, at least to the extent of requiring it to accept applications by girls for membership. Schwenk v. Boy Scouts of America, 275 Or 327, 551 P2d 465 (1976)

 

      Defendant engaged in selling ice machines at wholesale to retail businesses was not “place of public accommodation.” Graham v. Kold Kist Beverage Ice, Inc., 43 Or App 1037, 607 P2d 759 (1979)

 

      Custom builder who constructs homes for those with whom he contracts after bid process and negotiation cannot be said to have “offered his services to the public” within meaning of this section. Parsons v. Henry, 65 Or App 627, 672 P2d 717 (1983), Sup Ct review denied

 

      Whether private organization is place of public accommodation turns on: 1) whether organization is business or commercial enterprise; and 2) whether membership policies are so unselective that organization can fairly be said to be offering services to public. Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Or App 420, 43 P3d 1130 (2002), Sup Ct review denied

 

      To be place of public accommodation, organization must both offer goods or services of type described in this section and not be distinctly private. Lahmann v. Grand Aerie of Fraternal Order of Eagles, 202 Or App 123, 121 P3d 671 (2005), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Use of Military Department facilities, trucks, or color guards by organizations which discriminate on the basis of race, religion or sex, (1977) Vol 38, p 929

 

      659A.403

(formerly 30.670)

 

NOTES OF DECISIONS

 

      Racial insults made by employe of place of public accommodation to customer in the course of service to that customer constituted “distinction, discrimination or restriction on account of race” in contravention of this section. King v. Greyhound Lines, Inc., 61 Or App 197, 656 P2d 349 (1982)

 

      Bakery making wedding cakes for heterosexual couples but refusing same service for same-sex couple denies equal service “on account of” sexual orientation of couple. Klein v. BOLI, 289 Or App 507, 410 P3d 1051 (2017), Sup Ct review denied

 

      Application of this section to bakery that makes wedding cakes for heterosexual couples but refuses to make wedding cakes for same-sex couples, prohibiting them from denying equal service based on sexual orientation, does not violate free expression or free exercise clauses of United States Constitution. Klein v. BOLI, 289 Or App 507, 410 P3d 1051 (2017), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Use of Military Department facilities, trucks, or color guards by organizations which discriminate on the basis of race, religion or sex, (1977) Vol 38, p 929; Hotel limiting use to members of religious foundation as place of public accommodation, (1983) Vol 44, p 20

 

LAW REVIEW CITATIONS: 27 WLR 137 (1991)

 

      659A.406

(formerly 30.685)

 

NOTES OF DECISIONS

 

      Decision under binding arbitration does not have res judicataor collateral estoppel effect on later statutory discrimination claim by employee. Andrews v. May Department Stores, 96 Or App 305, 773 P2d 1324 (1989), Sup Ct review denied; Faris v. Gamble, Inc., 133 Or App 221, 889 P2d 1363 (1995)

 

ATTY. GEN. OPINIONS: Use of Military Department facilities, trucks or color guards by organizations which discriminate on the basis of religion, race or sex, (1977) Vol 38, p 929

 

      659A.421

(formerly 659.033)

 

NOTES OF DECISIONS

 

      By providing civil action for claim of housing discrimination, [former] ORS 659.121 (2) did not eliminate authority of Commissioner of Bureau of Labor and Industries to assess damages in administrative proceeding. Schipporeit v. Roberts, 93 Or App 12, 760 P2d 1339 (1988), aff’d 308 Or 199, 778 P2d 953 (1988)

 

      Damages under this section could be awarded to personal representative of claimant, because right to procure full administrative relief survives death of injured party. Schipporeit v. Roberts, 93 Or App 12, 760 P2d 1339 (1988), aff’d 308 Or 199, 778 P2d 953 (1988)

 

      Landlord’s actions constituted refusal to rent to claimant, where claimant did all she could be expected to do and did not actually fill out rental application only because petitioner failed to make it available to her. Schipporeit v. Roberts, 93 Or App 12, 760 P2d 1139 (1988), aff’d 308 Or 199, 778 P2d 953 (1988)

 

ATTY. GEN. OPINIONS: Limiting married student housing to married students, (1976) Vol 37, p 1297; refusal to rent to unmarried couple of opposite sexes not violative, (1976) Vol 38, p 181; operation of hotel under specified circumstances as complying with Public Accommodations Law, (1983) Vol 44, p 20

 

      659A.815

(formerly 659.115)

 

NOTES OF DECISIONS

 

      Commissioner was authorized to appoint advisory committee under Cease and Desist Order to communicate contents of order to minority communities and to advise and make recommendations to Bureau of Labor regarding progress made and reports filed under order. Sterling v. Klamath Forest Protective Assn., 19 Or App 383, 528 P2d 574 (1974)

 

      Where employer refused to reinstate employe following recovery from job related injury a cause of action was stated under this section and there was no conflict with federal law requiring exhaustion of grievance procedures because employe was seeking vindication of statutory rights and not remedy for breach of employment contract. Vaughn v. Pacific Northwest Bell, 40 Or App 427, 595 P2d 829 (1979), aff’d 289 Or 73, 611 P2d 281 (1980)

 

      659A.820

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.040)

 

      When employer fires employe who misses work due to injury compensable by workers’ compensation, unlawful labor practice occurs when he is fired rather than when he later requests reinstatement. Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 659.040)

      19 WLR 65 (1983)

 

      659A.835

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.095)

 

      Failure to strictly comply with technical notice requirements does not render notice invalid if notice enables respondent to adequately respond to allegations in determination. Colson v. Bureau of Labor and Industries, 113 Or App 106, 831 P2d 706 (1992)

 

      659A.840

 

ATTY. GEN. OPINIONS

 

Under former similar statute (ORS 659.060)

 

      Hearing requirement where no monetary remedy available for complainant or discrimination determination reversed, (1979) Vol 40, p 64

 

      659A.845

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.060)

 

      Commissioner had authority to decide whether charges of general racial discrimination beyond scope of particular employe’s original complaint were proper. School District No. 1 v. Nilsen, 262 Or 559, 499 P2d 1309 (1972)

 

      659A.850

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.010)

 

      Commissioner is without authority to include in a Cease and Desist Order “affirmative action” provisions that mandate preferential, as opposed to equal, employment opportunities. Sterling v. Klamath Forest Protective Assn., 19 Or App 383, 528 P2d 574 (1974)

 

      In the respect that the commissioner’s remedial authority encompasses other persons similarly situated, the proceeding is in the nature of a class action although only the individual is named as the subject of discrimination. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

 

      Commissioner’s supervisory order must be supported by reliable, probative and substantial evidence that order is necessary to prevent recurrence of unlawful practice. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

 

      Award of back pay serves to protect rights of complainant and therefore can be incorporated as part of cease and desist order. Clackamas Co. Fire Protection Dist. v. Bureau of Labor, 50 Or App 337, 624 P2d 141 (1981), Sup Ct review denied

 

      Where elimination of effect of discrimination involves payment of lost income, interest on each installment of lost income accrues from date claimant would have received that installment. Ogden v. Bureau of Labor, 299 Or 98, 699 P2d 189 (1985)

 

Under former similar statute (ORS 659.060)

 

      Commissioner is without authority to include in a Cease and Desist Order “affirmative action” provisions that mandate preferential, as opposed to equal, employment opportunities. Sterling v. Klamath Forest Protective Assn., 19 Or App 383, 528 P2d 574 (1974)

 

      In respect that commissioner’s remedial authority encompasses other persons similarly situated, proceeding is in nature of class action although only individual is named as subject of discrimination. School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975)

 

      659A.875

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.121)

 

      Applicable statute of limitations for actions under ORS 654.062 is one-year period for filing unlawful employment practice claim. Raptopolous v. WS, Inc., 738 F. Supp. 394 (D. Or. 1990)

 

      Requirement that civil suit or action must be commenced within one year of alleged unlawful practice if no complaint has been filed with Commissioner of Bureau of Labor and Industries is statute of limitations subject to equitable tolling. Logan v. West Coast Benson Hotel, 981 F. Supp. 1301 (D. Or. 1997)

 

      “One year” means calendar year of 365 or 366 days. Neff v. Jackson County, 187 Or App 402, 67 P3d 977 (2003)

 

In general

 

      Limitation period commenced by notice letter from Bureau of Labor and Industries applies to claims filed in federal court. Sharer v. State of Oregon, 481 F. Supp. 2d 1156 (D. Or. 2007)

 

      Where action is filed after end of limitation period commenced by notice letter from Bureau of Labor and Industries, but before end of limitation period commenced by letter from United States Equal Employment Opportunity Commission, action is untimely. Sharer v. State of Oregon, 481 F. Supp. 2d 1156 (D. Or. 2007)

 

      659A.880

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.095)

 

      Where plaintiff filed civil action within 90 days after Bureau of Labor notice of failure to reach settlement or file charges, filing was timely. Macy v. Zusman Metals Co., Inc., 314 Or 320, 838 P2d 591 (1992)

 

      659A.885

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 659.121)

 

      Since actions brought under this section are equitable in nature, Article I, section 17 of Oregon Constitution, does not require jury trial. Wincer v. Ind. Paper Stock Co., 48 Or App 859, 618 P2d 15 (1980)

 

      Where telephone company discharged compensably injured employe, she was entitled to bring suit for injunctive relief and was not limited to or required to exhaust remedies provided by collective bargaining agreement. Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 611 P2d 281 (1980)

 

      Prevailing defendant in action pursuant to this section is entitled to award of attorney fees only if claim is brought in bad faith, is unreasonable or groundless or if plaintiff persists in litigating claim after it becomes evident claim is unreasonable or unfounded. Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981); Turnbow v. K.E. Enterprises, Inc., 155 Or App 59, 962 P2d 764 (1998)

 

      This section does not abrogate common law tort of wrongful discharge. Holien v. Sears, Roebuck and Co., 66 Or App 911, 677 P2d 704, aff’d 298 Or 76, 689 P2d 1292 (1984); Carlson v. Crater Lake Lumber Co., 103 Or App 190, 796 P2d 1216 (1990), as modified by 105 Or App 314, 804 P2d 511 (1991)

 

      When plaintiff seeks equitable relief of reinstatement, impossibility of reinstatement is affirmative defense and burden of establishing it rests on employer. Millsap v. Eugene Care Center, 68 Or App 223, 682 P2d 795 (1984), Sup Ct review denied

 

      On establishment in Oregon discrimination actions of prima facie case, burden does not shift from plaintiff where issue is simply whether plaintiff’s allegation or employer’s denial of discrimination is correct. Callan v. Confed. of Oreg. Sch. Adm., 79 Or App 73, 717 P2d 1252 (1986). But see Livingston v. Fred Meyer Stores, Inc., 567 F. Supp. 2d 1265 (D. Or. 2008)

 

      In civil action pursuant to this section, evidence of employe’s abilities to perform work duties at time of discharge is admissible even though information was not unavailable to employer at time of discharge. Brown v. City of Portland, 80 Or App 464, 722 P2d 1282 (1986), Sup Ct review denied

 

      In case brought pursuant to this section, plaintiff’s failure to include in prayer request for injunction did not mean that he had failed to allege facts sufficient to state claim. Davis v. Surcamp, 86 Or App 310, 738 P2d 1006 (1987)

 

      In action brought under this section, court properly did not limit attorney fees on basis of contingency fee agreement, but determined independently that amount it assessed was reasonable. Cook v. Coos-Curry Electric Cooperative, Inc., 86 Or App 600, 740 P2d 201 (1987)

 

      Discrimination statute does not preempt tort of intentional infliction of emotional distress. Palmer v. Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988)

 

      Definition of “tort” contained in ORS 30.260 applied to claim under this section and plaintiff was required to plead notice under Oregon Tort Claims Act. Brinkley v. Oregon Health Sciences University, 94 Or App 531, 766 P2d 1045 (1988), Sup Ct review denied

 

      Exclusivity provision of ORS 656.018 does not apply to employment discrimination injuries. Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (1990)

 

      Multiple family members allegedly fired in retaliation for one family member’s behavior have no derivative wrongful discharge claim. Carlson v. Crater Lake Lumber Co., 103 Or App 190, 796 P2d 1216 (1990), as modified by 105 Or App 314, 804 P2d 511 (1991)

 

      This provision provides adequate remedies and excludes common law remedies. Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990)

 

      Where one of three claims brought pursuant to this provision is still pending in trial court, trial court must deny request for attorney fees. Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990)

 

      Unlawful employment practices claim by employee alleging racial discrimination and one year statute of limitations began to accrue on date employee was denied promotion, since harm occurs whether or not position is ever filled by another person. Cortez v. State of Oregon, 121 Or App 602, 855 P2d 1154 (1993), Sup Ct review denied

 

      Plaintiff’s ability to bring wrongful discharge action based on resistance to discrimination does not depend on form of discrimination. Goodlette v. LTM, Inc., 128 Or App 62, 874 P2d 1354 (1994)

 

      Victim is not required to prove reasonable effort was made to resolve conflict in order to obtain injunctive relief. Ballinger v. Klamath Pacific Corp., 135 Or App 438, 898 P2d 232 (1995), Sup Ct review denied

 

      At-will employee may claim for loss of future earnings and fringe benefits as part of compensatory damages. Wooton v. Viking Distributing Co., Inc., 136 Or App 56, 899 P2d 1219 (1995), Sup Ct review denied; Tadsen v. Praegitzer Industries, Inc., 136 Or App 247, 902 P2d 586 (1995), aff’d 324 Or 465, 928 P2d 980 (1996)

 

      Oregon Tort Claims Act precludes award of punitive damages for unlawful employment practice by government body. Faro v. Highway Division, 143 Or App 388, 923 P2d 1298 (1996), modified144 Or App 399, 927 P2d 623 (1996), aff’d 326 Or 317, 951 P2d 716 (1998)

 

      “Occurrence” commencing running of statute of limitations is unlawful conduct or practice, not discovery by employee. Huff v. Great Western Seed Co., 322 Or 457, 909 P2d 858 (1996)

 

      Standard of proof for damages in claim of future lost pay and benefits is reasonable probability. Tadsen v. Praegitzer Industries, Inc., 324 Or 465, 928 P2d 980 (1996)

 

      Compensatory damages for front or back pay are not recoverable against coworkers. Schram v. Albertson’s, Inc., 146 Or App 415, 934 P2d 483 (1997)

 

      This section, in pari materia with ORS 20.075, permits court to adopt discretionary rule that awards attorney fees to defendant in unlawful employment action only if action is frivolous. McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200 (1998), clarified 327 Or 185, 957 P2d 1200 (1998)

 

      To qualify as prevailing party, plaintiff must succeed on significant issue that achieves at least some of benefit plaintiff sought in bringing suit. Siverly v. Young and Morgan Trucking Co., 172 Or App 282, 17 P3d 579 (2001)

 

      In determining whether plaintiff’s claim was frivolous, unreasonable or without foundation, so as to justify award of attorney fees, court may give consideration both to merits of claim and to procedural or substantive developments during litigation. McCarthy v. Oregon Freeze Dry, Inc., 334 Or 77, 46 P3d 721 (2002)

 

      Amount of award for violation of whistleblower law (ORS 659A.203) by governmental entity is subject to Oregon Tort Claims Act limit on liability in [former] ORS 30.270. Rabkin v. Oregon Health Sciences University, 350 F3d 967 (9th Cir. 2003)

 

In general

 

      Prevailing defendant may recover attorney fees only if plaintiff brought claim in bad faith or if claim was unfounded or unreasonable. Chase v. Vernam, 199 Or App 129, 110 P3d 128 (2005)

 

      Plaintiff’s claim is not unfounded or unreasonable if, viewed in light most favorable to plaintiff, plaintiff presented evidence that, if believed, could reasonably lead factfinder to find that elements necessary to constitute claim had been established. Chase v. Vernam, 199 Or App 129, 110 P3d 128 (2005)

 

      Where action is adjudicated in federal court, after plaintiff establishes prima facie case for Oregon discrimination action, burden of proof shifts to defendant to establish legitimate, nondiscriminatory reason for adverse employment action. Livingston v. Fred Meyer Stores, Inc., 567 F. Supp. 2d 1265 (D. Or. 2008)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 659.121)

      19 WLR 67 (1983); 31 WLR 179 (1995)