The Oregon legislature recently took a huge stand for victims of workplace discrimination and harassment by unanimously passing Senate Bill (SB) 726, the Oregon Workplace Fairness Act. The Act provides additional protections to workers experiencing various kinds of harassment and discrimination in the workplace. The Act can be attributed in part to the #MeToo movement, which shed light on the fact that at least one-in-four women experience workplace sexual harassment, but 75% of women face retaliation after reporting an incident. A staggering 94% of employees experiencing harassment do not file a formal complaint.
In a statement to OPB, Sen. Kathleen Taylor, D-Milwaukie, one of the chief sponsors of SB 726, stated that the goal of the legislation is to shift the power dynamic “to give employees a stronger voice when they are victims of discrimination and harassment.”
The Act expands existing civil and administrative remedies for violations against unlawful employment practices. The most significant change may be the Act’s extension of Oregon’s statute of limitations from one to five years for any workplace discrimination/harassment claims under ORS 659A.030 (related to race, color, religion, sex, sexual orientation (including gender identity), national origin, marital status, age), ORS 659A.112 (disability), and ORS 659A.082 (veterans status). This extension is critical to protecting the rights of victims of harassment and discrimination, as victims often do not appreciate that their experience at work constitutes discrimination or harassment or is illegal, or otherwise may not report harassment or discrimination out for fear of retaliation. This change is not effective immediately and this does not affect other applicable timelines, like Tort Claims Notice requirements against public employers or exhaustion of federal claims such as Title VII or ADA claims — if you think you may be a victim of harassment or discrimination in the workplace, you should still seek legal assistance as soon as possible, as such time limitations may affect your rights to pursue certain legal claims, particularly if you work for a public employer.
The Act also creates a significant change in Oregon law related to non-disclosure agreements and non-disparagement provisions related to workplace discrimination and harassment claims. These type of agreements usually prohibit employees from disclosing even the underlying facts of the alleged harassment or discrimination. The Act prohibits employers from requiring such provisions relating to claims of discrimination under ORS 659A.030, 659A.112, and 659A.082, and conduct that constitutes sexual assault as defined in the Act, even if such conduct occurred between an employer and employee off premises, when such agreements are requested as a condition of employment or during settlement and severance negotiations. However, victims are not prohibited from requesting such agreements if they desire confidentiality. This clause in the Act recognizes that such agreements have contributed to a pattern of secrecy in harassment and discrimination, because when victims are silenced and unable to tell their stories publicly, perpetrators are able to continue remaining in positions of power without accountability and are able to victimize others in those positions.
The Act is groundbreaking for the additional reason that it requires proactive action on behalf of employers to prevent harassment and discrimination in the workplace. The Act requires every employer in the state to adopt written policies containing procedures and practices for reduction and prevention of unlawful discrimination under ORS 659A.030, including sexual assault as defined by the Act, and discrimination under ORS 659A.112 and ORS 659A.082. These policies must be posted and available to all employees in the workplace and must be provided to employees at the time of hire. At a minimum, the policy must: provide a process for an employee to report prohibited conduct; identify the individual designated by the employer who is responsible for receiving reports; include the statue of limitations period; include a statement that an employer may not require or coerce an employee to enter into a nondisclosure agreement; include that an employee claiming to be aggrieved by unlawful conduct may voluntarily request to enter into a nondisclosure agreement; and include a statement that advises everyone to document any incidents involving prohibited conduct, including sexual assault. The Oregon Bureau of Labor and Industries will create and publish policies and procedures that employers can use as guidance to establish their own policies.
The Act doesn’t just protect employees, it also provides some protection to employers. The Act provides that employers may void severance agreements for any employee with the ability to hire and fire employees, or exercise control over employees, if, after an investigation, the employer determines that such an employee engaged in conduct that violates the employer’s policies or provisions of the Act.
Overall, the Act provides critical changes to Oregon law to ensure workers who experience discrimination and harassment can seek justice and that perpetrators are ultimately held accountable. “This bill is a long overdue modernization of the statutes that govern discrimination in the workplace . . . addressing workplace discrimination and harassment is a matter of basic fairness,” said Sen. Tim Knopp, R-Bend. Sen. Kathleen Taylor (D-Portland), Sen. Tim Knopp (R-Bend), and Sen. Sara Gelser (D-Corvallis) were co-chief sponsors of the bill. A bipartisan, bicameral group of 26 legislators signed on as sponsors. The bill now proceeds to Governor Brown for her signature.
Once signed by the Governor, SB 726 will take effect 91 days after the 2019 legislature adjourns.