Oregon Employment Discrimination Law

Oregon employment discrimination law is located in the following sections of the Oregon Revised Statutes.

Oregon Equal Pay Act

• 652.210 Definitions
  
• 652.220 Equal pay
• 652.230 Damages
• Section 4 Unlawful practice to seek salary history

Oregon Fair Employment Practices Act

• 659A Definitions.
• 659A.006. Discrimination policy; Protected classes.
• 659A.009. Policy against discrimination on the basis of age.
• 659A.029. Definition: "Because of sex".
• 659A.030. Protected classes; unlawful employment practice.
• 659A.040. Individuals applying for workers' compensation benefits - Discrimination prohibited.
• 659A.112. Disability discrimination.
• 659A.118. Reasonable accommodation.

Sexual Orientation Discrimination - State Employment

• 236.380. Personnel actions based on sexual orientation.

Genetic Information Discrimination

• 192.533. Legislative intent.
• 192.535. Obtaining genetic information; Informed consent required.
• 192.541. Violations.
• 659A.303. Genetic information; Employer prohibited from obtaining or using.

Prohibited Testing

• 659A.300. Discriminatory testing requiring breathalyzer, polygraph, psychological stress or brain-wave test or genetic test prohibited; exceptions.

Employment of Family Members

• 659A.309. Unlawful employment practice.

Tobacco Use During NonWorking Hours

• 659A.315. Use of lawful products.

Discrimination - Degrees in Theology

• 659A.318. Discrimination - Religious Degree

Equal Pay Act

Definitions
652.210. As used in ORS 652.210 to 652.230, unless the context requires otherwise:
(1) “Compensation” includes wages, salary, bonuses, benefits, fringe benefits and equity based compensation.
(2) “Employee” means any individual who, otherwise than as a copartner of the employer, as an independent contractor or as a participant in a work training program administered under the state or federal assistance laws, renders personal services wholly or partly in this state to an employer who pays or agrees to pay such individual at a fixed rate. However, when services are rendered only partly in this state, an individual is not an employee unless the contract of employment of the employee has been entered into, or payments thereunder are ordinarily made or to be made, within this state.
(3)(a) “Employer” means any person employing one or more employees, including the State of Oregon or any political subdivision thereof or any county, city, district, authority, public corporation or entity and any of their instrumentalities organized and existing under law or charter.
(b) “Employer” does not include the federal government.
(4) “Equal-pay analysis” means an evaluation process to assess and correct wage disparities among employees who perform work of comparable character.
(5) “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.
(6) “Rate” with reference to wages means:
(a) The basis of compensation for services by an employee for an employer; and
(b) Compensation based on the time spent in the performance of the services, on the number of operations accomplished or on the quantity produced or handled.
(7) “Sexual orientation” has the meaning given that term in ORS 174.100.
(8) “Unpaid wages” means the difference between the wages actually paid to an employee and the wages required under ORS 652.220 to be paid to the employee.
(9) “Veteran status” means an individual is a veteran as defined in ORS 408.225.
(10) “Wages” means all compensation for performance of service by an employee for an
employer, whether paid by the employer or another person, or paid in cash or any medium other than cash.
(11) “Working conditions” includes work environment, hours, time of day, physical surroundings and potential hazards encountered by an employee.
(12) “Work of comparable character” means work that requires substantially similar
knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or job title.

Equal Pay
652.220. (1) It is an unlawful employment practice under ORS chapter 659A for an employer to:
(a) In any manner discriminate between employees on the basis of a protected
class in the payment of wages or other compensation for work of comparable character.
(b) Pay wages or other compensation to any employee at a rate greater than that at
which the employer pays wages or other compensation to employees of a protected
class for work of comparable character.
(c) Screen job applicants based on current or past compensation.
(d) Determine compensation for a position based on current or past compensation of a
prospective employee. This paragraph is not intended to prevent an employer from considering the compensation of a current employee of the employer during a transfer, move or hire of the employee to a new position with the same employer.
(2) Notwithstanding subsection (1) of this section, an employer may pay employees for
work of comparable character at different compensation levels if all of the difference in
compensation levels is based on a bona fide factor that is related to the position in question and is based on:
(a) A seniority system;
(b) A merit system;
(c) A system that measures earnings by quantity or quality of production, including
piece-rate work;
(d) Workplace locations;
(e) Travel, if travel is necessary and regular for the employee;
(f) Education;
(g) Training;
(h) Experience; or
(i) Any combination of the factors described in this subsection, if the combination of
factors accounts for the entire compensation differential.
(3) An employer may not in any manner discriminate in the payment of
wages or other compensation against any employee because the employee has filed a complaint under ORS 659A.820 or in a proceeding under ORS 652.210 to 652.230[,] or 659A.885 or has testified, or is about to testify, or because the employer believes that the employee may testify, in any investigation or proceedings pursuant to ORS 652.210 to 652.230, 659A.830 or 659A.885 or in a criminal action pursuant to ORS 652.210 to 652.230.
(4) An employer may not reduce the compensation level of an employee to comply with
the provisions of this section.
(5) Amounts owed to an employee because of the failure of the employer to comply with
the requirements of this section are unpaid wages.
(6) An employee who asserts a violation under this section may file a complaint with the
Commissioner of the Bureau of Labor and Industries under ORS 659A.820, a civil action under ORS 652.230 or a civil action under 659A.885.
(7) An employer shall post a notice of the requirements of this section in every establishment where employees work. The Bureau of Labor and Industries shall make available to employers a template that meets the required notice provisions of this section.

Damages
652.230. (1) Any employee whose compensation is at a rate that is in violation of ORS 652.220 shall have a right of action against the employer for the recovery of:
(a) The amount of the unpaid wages to which the employee is entitled for the one year period preceding the commencement of the action; and
(b) An additional amount as liquidated damages equal to the amount referred to in paragraph (a) of this subsection.
(2) The court shall award reasonable attorney fees to the prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and expert witness fees incurred by a defendant who prevails in the action if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim or no objectively reasonable basis for appealing an adverse decision of a trial court.
(3) The action for the unpaid wages and liquidated damages may be maintained by one or more employees on behalf of themselves or other employees similarly situated.
(4) No agreement for compensation at a rate less than the rate to which such employee is entitled under ORS 652.210 to 652.230 is a defense to any action under ORS 652.210 to 652.230.
(5) For the purpose of time limitations, a compensation practice that is unlawful under
ORS 652.220 occurs each time compensation is paid pursuant to a discriminatory compensation decision or other practice.
(6) An action under this section alleging a violation of ORS 652.220 must be commenced
within one year after the occurrence of the unlawful practice.
(7) Notwithstanding ORS 30.275 (2)(b), notice of claim against a public body under ORS
652.220 must be given within 300 days of discovery of the alleged loss or injury.

Unlawful practice to seek salary history
SECTION 4. It is an unlawful practice under ORS chapter 659A for an employer or prospective employer to seek the salary history of an applicant or employee from the applicant or employee or a current or former employer of the applicant or employee. This section is not intended to prevent an employer from requesting from a prospective employee written authorization to confirm prior compensation after the employer makes an offer of employment to the prospective employee that includes an amount of compensation.

Oregon Fair Employment Practices Act

659. Definitions.

SECTION 2. Definitions. As used in sections 2 to 7 of this 2007 Act:

(1) 'Covered employer' means an employer who employs six or more individuals in the State of Oregon for each working day during each of 20 or more calendar workweeks in the year in which an eligible employee takes leave to address domestic violence, sexual assault or stalking, or in the year immediately preceding the year in which an eligible employee takes leave to address domestic violence, sexual assault or stalking. (2) 'Eligible employee' means an employee who:

(a) Worked an average of more than 25 hours per week for a covered employer for at least 180 days immediately before the date the employee takes leave; and (b) Is a victim of domestic violence, sexual assault or stalking or is the parent or guardian of a minor child or dependent who is a victim of domestic violence, sexual assault or stalking.

(3) 'Protective order' means an order authorized by ORS 30.866, 107.095 (1)©), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750 or any other order that restrains an individual from contact with an eligible employee or the employee's minor child or dependent. (4) 'Victim of domestic violence' means:

(a) An individual who has been a victim of abuse, as defined in ORS 107.705; or (b) Any other individual designated as a victim of domestic violence by rule adopted under ORS 659A.805.

(5) 'Victim of sexual assault' means:

(a) An individual against whom a sexual offense has been committed as described in ORS 163.305 to 163.467 or 163.525; or (b) Any other individual designated as a victim of sexual assault by rule adopted under ORS 659A.805.

(6) 'Victim of stalking' means:

(a) An individual against whom stalking has been committed as described in ORS 163.732; or (b) Any other individual designated as a victim of stalking by rule adopted under ORS 659A.805.

(7) 'Victim services provider' means a prosecutor-based victim assistance program or a nonprofit program offering safety planning, counseling, support or advocacy related to domestic violence, sexual assault or stalking.

SECTION 3. Leave from work. Except as provided in section 4 of this 2007 Act, a covered employer shall allow an eligible employee to take reasonable leave from employment for any of the following purposes:

(1) To seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or the employee's minor child or dependent, including preparing for and participating in protective order proceedings or other civil or criminal legal proceedings related to domestic violence, sexual assault or stalking. (2) To seek medical treatment for or to recover from injuries caused by domestic violence or sexual assault to or stalking of the eligible employee or the employee's minor child or dependent. (3) To obtain, or to assist a minor child or dependent in obtaining, counseling from a licensed mental health professional related to an experience of domestic violence, sexual assault or stalking. (4) To obtain services from a victim services provider for the eligible employee or the employee's minor child or dependent. (5) To relocate or take steps to secure an existing home to ensure the health and safety of the eligible employee or the employee's minor child or dependent.

SECTION 4. Undue hardship.

(1) As used in this section, ' undue hardship' means a significant difficulty and expense to a covered employer's business and includes consideration of the size of the employer's business and the employer's critical need for the eligible employee. (2) A covered employer may limit the amount of leave an eligible employee takes under section 3 of this 2007 Act if the employee's leave creates an undue hardship on the employer's business.

SECTION 5. Denying leave to employee prohibited; civil action. It is an unlawful employment practice for a covered employer to deny leave to an eligible employee or to discharge, threaten to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment because the employee takes leave as provided in section 3 of this 2007 Act.

SECTION 6. Notice to employer; records confidential.

(1) An eligible employee shall give the covered employer reasonable advance notice of the employee's intention to take leave for the purposes identified in section 3 of this 2007 Act, unless giving the advance notice is not feasible. (2) The covered employer may require the eligible employee to provide certification that:

(a) The employee or the employee's minor child or dependent is a victim of domestic violence, sexual assault or stalking; and (b) The leave taken is for one of the purposes identified in section 3 of this 2007 Act.

(3) The eligible employee shall provide the certification within a reasonable time after receiving the covered employer's request for the certification. (4) Any of the following constitutes sufficient certification:

(a) A copy of a police report indicating that the eligible employee or the employee's minor child or dependent was a victim of domestic violence, sexual assault or stalking. (b) A copy of a protective order or other evidence from a court or attorney that the eligible employee appeared in or was preparing for a civil or criminal proceeding related to domestic violence, sexual assault or stalking. ©) Documentation from an attorney, law enforcement officer, health care professional, licensed mental health professional or counselor, member of the clergy or victim services provider that the eligible employee or the employee's minor child or dependent was undergoing treatment or counseling, obtaining services or relocating as a result of domestic violence, sexual assault or stalking.

(5) All records and information kept by a covered employer regarding an eligible employee's leave under sections 2 to 7 of this 2007 Act, including the fact that the employee has requested or obtained leave under section 3 of this 2007 Act, are confidential and may not be released without the express permission of the employee, unless otherwise required by law.

SECTION 7. Use of paid leave.

(1) Except as provided in subsections (2) and (3) of this section, and unless otherwise provided by the terms of an agreement between the eligible employee and the covered employer, a collective bargaining agreement or an employer policy, a covered employer is not required to grant leave with pay to an eligible employee under section 3 of this 2007 Act. (2) An eligible employee who takes leave pursuant to section 3 of this 2007 Act may use any paid accrued vacation leave or may use any other paid leave that is offered by the covered employer in lieu of vacation leave during the period of leave. (3) Subject to the terms of any agreement between the eligible employee and the covered employer or the terms of a collective bargaining agreement or an employer policy, the covered employer may determine the order in which paid accrued leave is to be used when more than one type of paid accrued leave is available to the employee.

659A.006. Discrimination policy; Protected classes.

Sec. 659A.006. Discrimination policy.

(1) It is declared to be the public policy of Oregon that practices of discrimination against any of its inhabitants because of race, color, religion, sex, sexual orientation, national origin, marital status, age or disability are a matter of state concern and that this discrimination not only threatens the rights and privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.
(2) The opportunity to obtain employment or housing or to use and enjoy places of public accommodation without discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or disability hereby is recognized as and declared to be a civil right.
(3) It is not an unlawful practice for a bona fide church or other religious institution to take any action with respect to housing or the use of facilities based on a bona fide religious belief about sexual orientation as long as the housing or the use of facilities 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.
(4) It is not an unlawful employment practice for a bona fide church or other religious institution, including but not limited to a school, hospital or church camp, to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:

(a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the church or institution;
(b) In the opinion of the church or institution, the preference will best serve the purposes of 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 that has no necessary relationship to the church or institution.

(5) It is not an unlawful employment practice for a bona fide church or other religious institution to take any employment action based on a bona fide religious belief about sexual orientation:

(a) In employment positions directly related to the operation of a church or other place of worship, such as clergy, religious instructors and support staff;
(b) In employment positions in a nonprofit religious school, nonprofit religious camp, nonprofit religious day care center, nonprofit religious thrift store, nonprofit religious bookstore, nonprofit religious radio station or nonprofit religious shelter; or
(c) In other employment positions that involve religious activities, as long as 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.

659A.009. Policy against discrimination on the basis of age.

It is declared to be the public policy of Oregon that available manpower should be utilized to the fullest extent possible. To this end the abilities of an individual, and not any arbitrary standards which discriminate against an individual solely because of age, should be the measure of the individual's fitness and qualification for employment.

659A.029. Definition: "Because of sex".

For purposes of ORS 659A.030, the phrase "because of sex" includes, but is not limited to, because of pregnancy, childbirth and related medical conditions or occurrences. Women affected by pregnancy, childbirth or related medical conditions or occurrences shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work by reason of physical condition, and nothing in this section shall be interpreted to permit otherwise.

Sec. 659A.030. Protected classes.

(1) It is an unlawful employment practice:

(a) For an employer, because of an individual's race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, 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 refuse to hire or employ the individual or to bar or discharge individual from employment. However, discrimination is not an unlawful employment practice if the discrimination results from a bona fide occupational qualification reasonably necessary to the normal operation of the employer's business.
(b) For an employer, because of an individual's race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, 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 discriminate against the individual in compensation or in terms, conditions or privileges of employment.
(c) For a labor organization, because of an individual's race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of an individual's juvenile record that has been expunged pursuant to ORS 419A.260 and 419A.262, to exclude or to expel from its membership the individual or to discriminate in any way against 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 that expresses directly or indirectly any limitation, specification or discrimination as to an individual's race, color, religion, 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 limitation, specification or discrimination, unless based upon a bona fide occupational qualification. Identification of prospective employees according to race, color, religion, 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 the designation expresses an intent to limit, specify or discriminate on the basis of race, color, religion, sex, sexual orientation, national origin, marital status or age.
(e) For an employment agency, because of an individual's race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, color, religion, 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 the individual. However, it is not an unlawful employment practice for an employment agency to classify or refer for employment an individual when the classification or referral results from a bona fide occupational requirement 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.

(5) This section does not prohibit an employer from enforcing an otherwise valid dress code or policy, as long as the employer provides, on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.

659A.040. Individuals applying for workers' compensation benefits - Discrimination prohibited.
(1) It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or has given testimony under the provisions of those laws.

(2) This section applies only to employers who employ six or more persons.

659A.082. Uniformed Service
(1) As used in this section:
  (a) 'Service' means the performance of duty on a voluntary or involuntary basis in a uniformed service that may involve active duty, active duty for training, initial active duty for training, inactive duty for training, full-time duty in the National Guard, funeral honors duty or an examination to determine fitness for service in a uniformed service.
      (b) 'Uniformed service' means the Armed Forces of the
United States, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training or full-time National Guard duty, the commissioned corps of the United States Public Health Service and any other category of persons designated by the President of the United States in time of war or national emergency. 
  (2) It is an unlawful employment practice for an employer to discriminate against a person because of the person's service in a uniformed service by:
  (a) If the employer is a public body, denying a public officer or public employee the status or rights provided by ORS 408.240 to 408.280 and 408.290.
  (b) Denying any of the following because a person is a member of, applies to be a member of, performs, has performed, applies to perform or has an obligation to perform service in a uniformed service:
  (A) Initial employment;
  (B) Reemployment following a leave from employment taken by reason of service in a uniformed service;
  (C) Retention in employment;
  (D) Promotion; or
  (E) Any other term, condition or privilege of employment,
including but not limited to compensation.
  (c) Discharging, expelling, disciplining, threatening or
otherwise retaliating against the person for exercising or
attempting to exercise the status or rights provided by this section.
  (3) An employer does not commit an unlawful employment practice under subsection (2)(b) of this section if the employer acted based on a bona fide occupational requirement reasonably necessary to the normal operation of the employer's business and the employer's actions could not be avoided by making a reasonable accommodation of the person's service in a uniformed service.
  (4) Subsection (2)(b) and (c) of this section shall be
construed to the extent possible in a manner that is consistent with similar provisions of the federal Uniformed Services Employment and Reemployment Rights Act of 1994.  (Effective 4/14/2011)
 

659A.112. Disability discrimination.

(1) It is an unlawful employment practice for any

employer to refuse to hire, employ or promote, to bar or

discharge from employment or to discriminate in compensation or

in terms, conditions or privileges of employment on the basis of disability.

  (2) An employer violates subsection (1) of this section if the employer does any of the following:

  (a) The employer limits, segregates or classifies a job

applicant or employee in a way that adversely affects the

opportunities or status of the applicant or employee because the applicant or employee has a disability.

  (b) The employer participates in a contractual or other

arrangement or relationship that has the effect of subjecting a qualified job applicant or employee with a disability to the discrimination prohibited by ORS 659A.112 to 659A.139, including but not limited to participating in a relationship with an employment or referral agency, a labor union, an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs.

  (c) The employer utilizes standards, criteria or methods of administration that have the effect of discrimination on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control.

  (d) The employer excludes or otherwise denies equal jobs or benefits to a qualified individual because the individual is known to have a relationship or

association with an individual with a disability.

  (e) The employer does not make reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.

  (f) The employer denies employment opportunities to a job

applicant or employee who is a qualified individual with a disability, if the denial is based on the need of the employer to make reasonable accommodation to the physical or mental impairments of

the employee or applicant.

  (g) The employer uses qualification standards, employment tests or other selection criteria,including those based on an individual's uncorrected vision or unaided hearing,that

screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criterion, as used by the employer, is shown to be job-related for the position in question and is consistent with business necessity.

  (h) The employer fails to select and administer tests relating to employment in the most effective manner to ensure that when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude or other

characteristics of the applicant or employee that the test

purports to measure, rather than reflecting the impaired sensory, manual or speaking skills of the employee or applicant. The provisions of this paragraph do not limit the ability of an employer to select or administer tests designed to measure sensory, manual or speaking skills of an employee or job applicant.

  

659A.115. Qualified Individual.

For the purposes of ORS 659A.112,   an individual is qualified for a position if the individual, with or without reasonable accommodation, can perform the essential functions of the position. For the purpose

of determining the essential functions of the position, due

consideration shall be given to the employer's determination as to the essential functions of a position. If an employer has prepared a written description before advertising or interviewing applicants for a job, the position description shall be considered evidence of the essential functions of the job.

659A.118. Reasonable accommodation.

(1) For the purposes of ORS 659A.112, reasonable accommodation of an otherwise qualified person with a disability may include:

(a) Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
(b) Job restructuring, part-time or modified work schedules or reassignment to a vacant position.
(c) Acquisition or modification of equipment or devices.
(d) Appropriate adjustment or modification of examinations, training materials or policies.
(e) The provision of qualified readers or interpreters.

(2) Notwithstanding any other provision of ORS 659A.100 to 659A.145, an employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to a person with a disability arising out of transsexualism.

659A.2  Employers Cannot Discriminate Based on Current Employment of Applicants

Except as permitted under ORS chapter 240
or any other provision of law, an employer, the employer's agent, representative or designee or an employment agency may not knowingly or purposefully publish in print or on the Internet an advertisement for a job vacancy in this state that provides that:
  (a) The qualifications for a job include current employment;
  (b) The employer, the employer's agent, representative or designee or the employment agency will not consider or review an application for employment submitted by a job applicant who is currently unemployed; or
  (c) The employer, the employer's agent, representative or designee or the employment agency will only consider or review applications for employment submitted by job applicants who are currently employed.
  (2) Violation of this section is an unlawful practice.
  (3) Nothing in this section shall be construed to:
  (a) Prohibit an employer, the employer's agent, representative or designee or an employment agency from publishing in print or on the Internet an advertisement for a job vacancy in this state
that contains a provision:
  (A) Setting forth qualifications for a job vacancy, including but not limited to:
  (i) Holding a current and valid professional or occupational license, certificate, registration, permit or other credential; or
  (ii) A minimum level of education or training, or professional, occupational or field experience; or
  (B) Stating that only applicants who are current employees of the employer will be considered for the position.
  (b) Create or authorize a private cause of action by an
aggrieved person against an employer, the employer's agent, representative or designee or an employment agency that is alleged to violate or has violated this section.
  (4) An employer or employment agency that is found to have violated subsection (1) of this section by the Commissioner of the Bureau of Labor and Industries shall be assessed a civil penalty as provided under ORS 659A.855. Effective 03/27/2012.

Drug Testing.

659A.300 MISCELLANEOUS UNLAWFUL EMPLOYMENT DISCRIMINATION Requiring breathalyzer, polygraph, psychological stress or brain-wave test or genetic test prohibited; exceptions.

(1) Except as provided in this section, it is an unlawful employment practice for any employer to subject, directly or indirectly, any employee or prospective employee to any breathalyzer test, polygraph examination, psychological stress test, genetic test or brain-wave test.

(2) As used in this section:

(a) "Breathalyzer test" means a test to detect the presence of alcohol in the body through the use of instrumentation or mechanical devices.

(b) "Genetic test" has the meaning given in ORS 192.531.

(c) "Polygraph examination or psychological stress test" means a test to detect deception or to verify the truth of statements through the use of instrumentation or mechanical devices.

(d) An individual is "under the influence of intoxicating liquor" when the individual’s blood alcohol content exceeds the amount prescribed in a collective bargaining agreement or the amount prescribed in the employer’s work rules if there is no applicable collective bargaining provision.

(3) Nothing in subsection (1) of this section shall be construed to prohibit the administration of a polygraph examination to an individual, if the individual consents to the examination, during the course of criminal or civil judicial proceedings in which the individual is a party or witness or during the course of a criminal investigation conducted by a law enforcement agency, as defined in ORS 181.010, a district attorney or the Attorney General.

(4) Nothing in subsection (1) of this section shall be construed to prohibit the administration of a breathalyzer test to an individual if the individual consents to the test. If the employer has reasonable grounds to believe that the individual is under the influence of intoxicating liquor, the employer may require, as a condition for employment or continuation of employment, the administration of a blood alcohol content test by a third party or a breathalyzer test. The employer shall not require the employee to pay the cost of administering any such test.

(5) Subsection (1) of this section does not prohibit the administration of a genetic test to an individual if the individual or the individual’s representative grants informed consent in the manner provided by ORS 192.535, and the genetic test is administered solely to determine a bona fide occupational qualification. [Formerly 659.227]

Sexual Orientation Discrimination - State Employment

236.380. Personnel actions based on sexual orientation.

(1) For purposes of this section, "sexual orientation" means heterosexuality, homosexuality or bisexuality.

(2) No state official shall forbid the taking of any personnel action against any state employee based on the sexual orientation of such employee.

(3) This section shall not be deemed to limit the authority of any state official to forbid generally the taking of personnel action against state employees based on nonjob related factors.

Genetic Information Discrimination

192.533. Legislative intent.
(1) The Legislative Assembly finds that:

(a) The DNA molecule contains information about the probable medical future of an individual and the individual's blood relatives. This information is written in a code that is rapidly being broken.

(b) Genetic information is uniquely private and personal information that generally should not be collected, retained or disclosed without the individual's authorization.

(c) The improper collection, retention or disclosure of genetic information can lead to significant harm to an individual and the individual's blood relatives, including stigmatization and discrimination in areas such as employment, education, health care and insurance.

(d) An analysis of an individual's DNA provides information not only about the individual, but also about blood relatives of the individual, with the potential for impacting family privacy, including reproductive decisions.

(e) Current legal protections for medical information, tissue samples and DNA samples are inadequate to protect genetic privacy.

(f) Laws for the collection, storage and use of identifiable DNA samples and private genetic information obtained from those samples are needed both to protect individual and family privacy and to permit and encourage legitimate scientific and medical research.

(2) The purposes of ORS 192.531 to 192.549 and 746.135 and the provisions of ORS 659A.300, 659A.303 and 746.015 relating to genetic characteristics, information and testing are as follows:

(a) To define the rights of individuals whose genetic information is collected, retained or disclosed and the rights of the individuals' blood relatives.

(b) To define the circumstances under which an individual may be subjected to genetic testing.

(c) To define the circumstances under which an individual's genetic information may be collected, retained or disclosed.

(d) To protect against discrimination by an insurer or employer based upon an individual's genetic characteristics.

(e) To define the circumstances under which a DNA sample or genetic information may be used for research.

192.535. Obtaining genetic information; Informed consent required.

(1) A person may not obtain genetic information from an individual, or from an individual's DNA sample, without first obtaining informed consent of the individual or the individual's representative, except:

(a) As authorized by ORS 181.085 or comparable provisions of federal criminal law relating to the identification of persons, or for the purpose of establishing the identity of a person in the course of an investigation conducted by a law enforcement agency, a district attorney, a medical examiner or the Criminal Justice Division of the Department of Justice;

(b) For anonymous research conducted after notification or with consent pursuant to ORS 192.537 (2);

(c) As permitted by rules of the Department of Human Services for identification of deceased individuals;

(d) As permitted by rules of the Department of Human Services for newborn screening procedures;

(e) As authorized by statute for the purpose of establishing paternity; or

(f) For the purpose of furnishing genetic information relating to a decedent for medical diagnosis of blood relatives of the decedent.

(2) Except as provided in subsection (3) of this section, a physician licensed under ORS chapter 677 shall seek the informed consent of the individual or the individual's representative for the purposes of subsection (1) of this section in the manner provided by ORS 677.097. Except as provided in subsection (3) of this section, any other licensed health care provider or facility must seek the informed consent of the individual or the individual's representative for the purposes of subsection (1) of this section in a manner substantially similar to that provided by ORS 677.097 for physicians.

(3) A person conducting research shall seek the informed consent of the individual or the individual's representative for the purposes of subsection (1) of this section in the manner provided by ORS 192.547.

(4) Except as provided in ORS 746.135 (1), any person not described in subsection (2) or (3) of this section must seek the informed consent of the individual or the individual's representative for the purposes of subsection (1) of this section in the manner provided by rules adopted by the Department of Human Services.

(5) The Department of Human Services may not adopt rules under subsection (1)(d) of this section that would require the providing of a DNA sample for the purpose of obtaining complete genetic information used to screen all newborns. [Sec. 192.535, a amended by Ch. 333 (S.B. 618), L. 2003, effective June 12, 2003].

192.541. Violations.

(1) An individual or an individual's blood relative, representative or estate may bring a civil action against any person who violates ORS 192.535, 192.537, 192.539 or 192.547.

(2) For a violation of ORS 192.537 or 192.547, the court shall award the greater of actual damages or:

(a) $100, for an inadvertent violation that does not arise out of the negligence of the defendant;

(b) $500, for a negligent violation;

(c) $10,000, for a knowing or reckless violation;

(d) $15,000, for a knowing violation based on a fraudulent misrepresentation; or

(e) $25,000, for a knowing violation committed with intent to sell, transfer or use for commercial advantage, personal gain or malicious harm.

(3) For a violation of ORS 192.535 or 192.539, the court shall award the greater of actual damages or:

(a) $1,000, for an inadvertent violation that does not arise out of the negligence of the defendant;

(b) $5,000, for a negligent violation;

(c) $100,000, for a knowing or reckless violation;

(d) $150,000, for a knowing violation based on a fraudulent misrepresentation; or

(e) $250,000, for a knowing violation committed with intent to sell, transfer or use for commercial advantage, personal gain or malicious harm.

(4) It is an affirmative defense to an action described in subsection (2)(a) or (b) or (3)(a) or (b) of this section that the defendant corrected the violation through destruction of illegally retained or obtained samples or information, or took other action to correct the violation, if the correction was completed within 120 days after the defendant knew or should have known that the violation occurred.

(5) The court may provide such equitable relief as it deems necessary or proper.

(6)(a) The court may award attorney fees to a defendant only if the court finds that the plaintiff had no objectively reasonable basis for asserting a claim or for appealing an adverse decision of the trial court.

(b) The court shall award attorney fees to a plaintiff if the court finds that the defendant committed a violation described in subsection (2)(c), (d) or (e) or (3)(c), (d) or (e) of this section.

(7) An action authorized by subsection (1) of this section must be commenced within three years after the date the plaintiff knew or should have known of the violation, but in no instance more than 10 years after the date of the violation.

(8) A plaintiff may recover damages provided by subsections (2) and (3) of this section for each violation by a defendant.

(9) ORS 18.535, 18.537, 18.540 and 18.550 do not apply to amounts awarded in actions under this section.

659A.303. Genetic information; Employer prohibited from obtaining or using.

(1) It is an unlawful employment practice for an employer to seek to obtain, to obtain or to use genetic information of an employee or a prospective employee, or of a blood relative of the employee or prospective employee, to distinguish between or discriminate against or restrict any right or benefit otherwise due or available to an employee or a prospective employee.

(2) An employee or prospective employee may bring a civil action under ORS 659A.885 for a violation of this section.

(3) For purposes of this section, "blood relative," "genetic information" and "obtain genetic information" have the meanings given those terms in ORS 192.531.

Prohibited Testing

659A.300.
(1) Except as provided in this section, it is an unlawful employment practice for any employer to subject, directly or indirectly, any employee or prospective employee to any breathalyzer test, polygraph examination, psychological stress test, genetic test or brain-wave test.

(2) As used in this section:

(a) "Breathalyzer test" means a test to detect the presence of alcohol in the body through the use of instrumentation or mechanical devices.

(b) "Genetic test" has the meaning given in ORS 192.531.

(c) "Polygraph examination or psychological stress test" means a test to detect deception or to verify the truth of statements through the use of instrumentation or mechanical devices.

(d) An individual is "under the influence of intoxicating liquor" when the individual's blood alcohol content exceeds the amount prescribed in a collective bargaining agreement or the amount prescribed in the employer's work rules if there is no applicable collective bargaining provision.

(3) Nothing in subsection (1) of this section shall be construed to prohibit the administration of a polygraph examination to an individual, if the individual consents to the examination, during the course of criminal or civil judicial proceedings in which the individual is a party or witness or during the course of a criminal investigation conducted by a law enforcement agency, as defined in ORS 181.010, a district attorney or the Attorney General.

(4) Nothing in subsection (1) of this section shall be construed to prohibit the administration of a breathalyzer test to an individual if the individual consents to the test. If the employer has reasonable grounds to believe that the individual is under the influence of intoxicating liquor, the employer may require, as a condition for employment or continuation of employment, the administration of a blood alcohol content test by a third party or a breathalyzer test. The employer shall not require the employee to pay the cost of administering any such test.

(5) Subsection (1) of this section does not prohibit the administration of a genetic test to an individual if the individual or the individual's representative grants informed consent in the manner provided by ORS 192.535, and the genetic test is administered solely to determine a bona fide occupational qualification.

Employment of Family Members

659A.309.

(1) Except as provided in subsection (2) of this section, it is an unlawful employment practice for an employer solely because another member of an individual's family works or has worked for that employer to:

(a) Refuse to hire or employ an individual;

(b) Bar or discharge from employment an individual; or

(c) Discriminate against an individual in compensation or in terms, conditions or privileges of employment.

(2) An employer is not required to hire or employ and is not prohibited from barring or discharging an individual if such action:

(a) Would constitute a violation of any law of this state or of the United States, or any rule promulgated pursuant thereto, with which the employer is required to comply;

(b) Would constitute a violation of the conditions of eligibility for receipt by the employer of financial assistance from the government of this state or the United States;

(c) Would place the individual in a position of exercising supervisory, appointment or grievance adjustment authority over a member of the individual's family or in a position of being subject to such authority which a member of the individual's family exercises; or

(d) Would cause the employer to disregard a bona fide occupational requirement reasonably necessary to the normal operation of the employer's business.

(3) As used in this section, "member of an individual's family" means the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent or stepchild of the individual.

Tobacco Use During NonWorking Hours

659A.315.

(1) It is an unlawful employment practice for any employer to require, as a condition of employment, that any employee or prospective employee refrain from using lawful tobacco products during nonworking hours, except when the restriction relates to a bona fide occupational requirement.

(2) Subsection (1) of this section does not apply if an applicable collective bargaining agreement prohibits off-duty use of tobacco products.

(3) A civil action may be brought under ORS 659A.885 for a violation of this section.

Discrimination - Degrees in Theology

659A.318.

(1) If an employer requires an applicant or employee to have an academic degree from a post-secondary institution to qualify for a position, but does not require a degree with a specific title, it is an unlawful employment practice for the employer to refuse to hire or promote or in any manner discriminate or retaliate against the applicant or employee only because the applicant or employee meets the educational requirements for the position by having a degree with a title in theology or religious occupations from a school described in ORS 348.594 (2)(d).

(2) If an employer other than a public body, as defined in ORS 192.410, offers employees benefits of tuition reimbursement, educational debt reduction, educational incentive or educational contribution or gift match for educational services provided by a post-secondary institution and the employer does not restrict the program to specific institutions or degrees with specific titles, it is an unlawful employment practice for the employer to refuse to offer the benefit to or in any manner discriminate or retaliate against an employee because the employee attends or seeks to attend a school, as described in ORS 348.594 (2)(d), offering only degrees with titles in theology or religious occupations.

659A.___ An employer violates ORS 659A.030 if:

(a) The employer does not allow an employee to use vacation leave, or other leave available to the employee, for the purpose of allowing the employee to engage in the religious observance or practices of the employee; and

(b) Reasonably accommodating use of the leave by the employee will not impose an undue hardship on the operation of the business of the employer as described in subsection (4) of this section.

(2) Subsection (1) of this section applies only to leave that is not restricted as to the manner in which the leave may be used and that the employer allows the employee to take by adjusting or altering the work schedule or assignment of the employee.

(3) An employer violates ORS 659A.030 if:

(a) The employer imposes an occupational requirement that restricts the ability of an employee to wear religious clothing, to take time off for a holy day or to take time off to participate in a religious observance or practice;

(b) Reasonably accommodating those activities does not impose an undue hardship on the operation of the business of the employer as described in subsection (4) of this section; and

(c) The activities have only a temporary or tangential impact on the employee's ability to perform the essential functions of the employee's job.

(4) A reasonable accommodation imposes an undue hardship on the operation of the business of the employer for the purposes of this section if the accommodation requires significant difficulty or expense. For the purpose of determining whether an accommodation requires significant difficulty or expense, the following factors shall be considered:

(a) The nature and the cost of the accommodation needed.

(b) The overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of persons employed at the facility and the effect on expenses and resources or other impacts on the operation of the facility caused by the accommodation.

(c) The overall financial resources of the employer, the overall size of the business of the employer with respect to the number of persons employed by the employer and the number, type and location of the employer's facilities.

(d) The type of business operations conducted by the employer, including the composition, structure and functions of the workforce of the employer and the geographic separateness and administrative or fiscal relationship of the facility or facilities of the employer.

(e) The safety and health requirements in a facility, including requirements for the safety of other employees and any other person whose safety may be adversely impacted by the requested accommodation.