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In the wake of its own sexual harassment scandals, the 2019 Oregon Legislature passed one of the most significant pieces of employment-related legislation that our state has seen in years: the Workplace Fairness Act, or WFA. This new law will force virtually every employer in the state to act soon, by either revising their existing anti-discrimination policies or by adopting a policy for the first time. The WFA calls for other changes, too. But first: how did we get here?
Title VII (the primary federal law targeting sex, race and other forms of employment discrimination) has been on the books for some 55 years. But discrimination and harassment (and in particular, sexual harassment) are clearly still a problem in the American workplace. For example, Equal Employment Opportunity Commission filings show a steady intake of over 12,000 claims with sex-based harassment allegations, each year, for the last eight years. That number jumped to over 13,000 claims in 2018, after the explosion of the #MeToo movement on social media in October 2017.
#MeToo has had extraordinary impact, world-wide, in not just sharing stories and raising awareness but also toppling the careers of those who engaged in the evils of harassment and assault (and even landing them in jail). The Oregon Legislature was not immune. Allegations led to the resignation of Sen. Jeff Kruse (although he denied wrongdoing) and a payout of over a million dollars to eight sexual harassment victims. Following these troubles, the new WFA has been described as trying to curb sexual harassment in the workplace—a laudable goal, for sure. But its impact is much broader than just sexual harassment claims. It impacts Oregon law’s treatment of most all forms of employment discrimination or harassment.
What’s the first impact of the WFA? As of this fall (late September 2019), the statute of limitations for most Oregon discrimination, harassment and retaliation claims will greatly expand from one to five years. That means an employee you fire this October 2019 could wait until September 2024 to sue for alleged discrimination or harassment. For perspective, keep in mind the purposes behind a statute of limitations, which can include encouraging diligence in the pursuit of valid claims, and avoiding the injustice that can come from ‘lost evidence’ or an inability to prove one’s defense long after the fact. This author is still searching, but is currently not aware of any other state with such a long window for these claims.
This certainly “ups the stakes” for Oregon employers in taking care to prevent workplace discrimination. Businesses should consider expanding their documentation retention policies and practices, too. For example, does your business consider capturing and preserving manager-employee texts upon the employee’s departure? They could be a valuable source of proof if a claim is pursued years down the road.
Next, by October 1, 2020, all Oregon employers will be required to adopt (or update their existing) anti-discrimination policies. Having such a policy has long been a “best practice,” and a key element of an employer’s defense in the event of a claim. But we now have, for the first time, a law that says employers must adopt a policy. And the WFA proscribes many elements that must now be in those policies, such as:
- A description of how to report suspected discrimination/harassment, and a specific person (and an alternate) to whom reports can be made;
- Notice that employees now have five years to bring legal action;
- Notice that employees may not be required to enter into a nondisclosure or nondisparagement agreement (but that an aggrieved employee may voluntarily request to enter into an agreement with those terms) and
- Advice that employees/employers alike should document any alleged incidents of discrimination/harassment.
The WFA contains other requirements as well, such as a mandate on employers to not only distribute the policy to new hires, but also to re-distribute that policy to anyone who complains of harassment or discrimination.
As of October 2020, employers will have to re-vamp their severance agreements, too. Many such agreements (which provide a departing employee with money exchange for a release of all claims) contain confidentiality or non-disclosure provisions. But the WFA will make certain confidentiality, nondisparagement and no-rehire provisions in such agreements prohibited, if they would silence an employee regarding discrimination/harassment or sexual assault. The only exception is if the employee requests such a provision. But what would an employee’s “request” look like? The law is silent, and we will hope for guidance from BOLI… but one might imagine that if negotiating the resolution of a claim, a savvy plaintiff’s attorney might bargain by saying “my client will ask for confidentiality if you’ll increase the payout.”
As a final WFA highlight, the Legislature created a strong incentive for executives to behave. Some well-compensated executives or CEOs enjoy “golden parachutes” built into their employment contracts, which provide severance pay in a variety of situations (such as involuntary termination by the employer). But the WFA says if the employer finds that the executive committed harassment, the employer can void the contract. This means employers may no longer be forced to pay to a departing executive any contract-mandated severance, as he/she walks out the door amid sexual assault allegations, if (after a good-faith investigation into reports of discrimination or harassment made against an executive/supervisor) the employer determines they engaged in unlawful conduct. “You’ll lose your lucrative severance package if you harass our employees” sends a strong message, for sure.
The details of all the WFA’s rules (and how to prepare WFA-complaint policies or agreements) are beyond the scope of this article. Please, work with an experience employment attorney to update yours soon.
As a final thought: what didn’t the WFA do? Surprisingly, the Legislature elected not to make anti-harassment training mandatory for Oregon employers. This too has long been a best practice, and can be useful in defending against a claim. And many jurisdictions have made it mandatory, at least for larger employers (see California, New York and Maine, for starters). But just because anti-harassment training isn’t mandatory in Oregon doesn’t mean that employers aren’t responding to #MeToo in a positive way: here in Central Oregon, businesses requested more trainings in 2018-2019 than I have seen in my entire career. Perhaps the WFA will help motivate other employers who have held off from addressing the topic to finally take a stand, and send the right message: invest in an ounce of prevention, and proactively train employees and managers alike to guard against the wrongdoing of workplace harassment.
Attorney Kurt Barker is the head of the Employment Law Department at Karnopp Petersen LLP in Bend, the largest private law firm in Central Oregon. He has been defending employers against employee claims since 2001, and is passionate about keeping proactive employers out of legal troubles (with training, advice, policy drafting and more). For assistance with appropriate workplace conduct/anti-harassment or other workplace trainings, policy drafting and more, contact his team at Karnopp Petersen, 541-382-3011.