The 2007 Legislature has changed the legal landscape for Oregon employers.Laws prohibiting discrimination on the basis of sexual orientation, allowing employees to use sick leave while on any kind family medical leave, and increasing damages available for discrimination under Oregon law are just some of the major enactments so far.But even as the session reaches its end, there are still a number of bills pending that Central Oregon employers should watch carefully.
Ban on Sexual Orientation Discrimination
Perhaps the most notable employment-related bill signed by Governor Kulongoski is the ban on sexual orientation discrimination.This bill was one of a pair of bills that enact a comprehensive ban on such discrimination.The second bill allows domestic partnerships under Oregon law, which grants same-sex couples the same legal rights and responsibilities as those granted to spouses in a marriage.The effective date of both acts is January 1, 2008.
Sexual orientation is defined broadly under the new law.It means a person’s real or perceived heterosexuality, homosexuality, bisexuality or gender identity.The contours of this broad definition will likely be set by the state Bureau of Labor and Industries and the courts.
For Bend employers, the ban on sexual orientation discrimination is not new.For several years, a city ordinance in Bend has prohibited discrimination on the basis of sexual orientation.Nine other cities in Oregon have similar ordinances.However, for the first time in Bend and elsewhere in the state, an employee who alleges discrimination on the basis of sexual orientation can sue for damages under state law.
The new law is also not limited to employers.Discrimination on the basis of sexual orientation is also prohibited in housing and places of public accommodation, including hotels, theaters and restaurants.
Employers should take steps now to ensure that they are meeting their obligations under the new law.First, employers should check the equal employment opportunity statement in their handbooks to be sure that sexual orientation is included in the list of protected classes.Harassment on the basis of sexual orientation should also be specifically prohibited.It would also be wise to conduct an update for employees on discrimination and harassment, with special emphasis on the ban on discrimination based on sexual orientation.Employees must be reminded how and where to make a report of harassment or discrimination.
In addition, because the new law bans discrimination in the “compensation, terms, conditions, or privileges of employment,” the best practice for employers would be to ensure that their voluntary benefits plans, including insurance and leave plans, cover domestic partners in the same way as spouses.
Increased Damages for Discrimination
On June 1, 2007, Governor Kulongoski signed HB 2260, which dramatically alters an employee’s ability to recover damages for many discrimination claims under Oregon law.Under current law, an employee suing for discrimination on the basis of race, religion, color, sex, national origin, marital status, or age cannot recover compensatory damages (such as emotional distress and most economic damages) or punitive damages.HB 2260 lifts that barrier, permitting claims for these broader categories of damages under Oregon law.Now that it is part of the anti-discrimination statutes, sexual orientation discrimination is also included in list of claims for which an employee could recover increased damages.This brings the Oregon statute closer in line with federal antidiscrimination statutes, which allow recovery of compensatory and punitive damages against employers.Unlike federal law, however, Oregon law does not cap damages at certain levels.
What this means in Oregon is that, for the first time, smaller employers—those with 15 or fewer employees—can now be sued for more substantial sums of money on discrimination claims.All the more reason to review and strengthen your antidiscrimination policies, and ensure your managers, supervisors and employees are fully trained on the requirements of the law.
Increased Damages for Discrimination Based on Wage Claim
Also on June 1, the Governor signed a bill allowing increased penalties against employers who discharge or discriminate against an employee on the grounds that the employee has made a wage claim.Under the previous law, employees were generally only entitled to recover $200 or their actual damages for such discrimination.The increased remedies now available include reinstatement and back pay for discharged workers.
Changes to Oregon Family Medical Leave Act
Changes to the Oregon Family Medical Leave Act (“OFLA”) have also been on the Legislature’s docket this year.One of those proposed changes passed both chambers and, as of this writing, is on the way to Governor Kulongoski for signature.HB 2485 changes the rules under OFLA that govern an employee’s use of paid leave while away from work on OFLA leave.
Oregon law does not require that any leave taken under OFLA be paid.However, the law currently provides that employees are allowed to use accrued, paid sick leave for OFLA leave if the absence qualifies under the employer’s sick leave plan or if the absence is for parental leave.The new law will permit employees to use accrued, paid sick leave for any OFLA absence, whether or not the absence would be covered by any provision in the employer’s sick leave plan.
Stay Tuned
The legislative session is not over yet and several additional employment-related bills are in the pipeline to the Governor.A couple of bills to watch:
· HB 2460:Excludes from OFLA leave any absence due to a workers’ compensation injury.Currently, employers can count workers’ compensation absences against an employee’s total OFLA leave entitlement.The bill passed the both chambers.
· HB 2372: Requires employers with 25 or more employees to provide unpaid rest periods to employees to express breast milk if providing rest periods do not cause undue hardship on operation of employer’s business.The bill has passed both chambers.
Bethany Graham is a labor and employment attorney with Schwabe, Williamson & Wyatt in Bend.She can be reached at bgraham@schwabe.com or 541/749-4045.
