Oregon’s Workplace Fairness Act

By Clay Creps

The landscape of laws regulating the employment relationship in Oregon seems to be constantly changing. Another big change occurred with the enactment of the Oregon Workplace Fairness Act. This legislation was signed into law by Governor Brown on June 11, 2019. This legislation grows out of the #MeToo movement, but it has a much broader reach than simply seeking to curb sexual harassment. The key provisions of the Act are the following:

Oregon Employers Are Required to Have a Written Anti-Discrimination Policy

Generally, employers in Oregon already have such a policy, but this law requires an employer in Oregon to have an anti-discrimination policy. (We can assume that following the effective date of this provision, prevailing on a discrimination claim will be virtually impossible for an employer that does not have such a policy.) Further, the policy must convey:

  • The process by which to report alleged discrimination or harassment;
  • The name of a specific individual, and an alternate person, to whom reports of suspected discrimination or harassment are to be made;
  • An encouragement that employees and employers are to document any incidents believed to constitute discrimination or harassment;
  • That an employee has five years from a suspected incident of discrimination or harassment to bring a legal action; and
  • That an employee may not be required to enter into any kind of a nondisparagement or nondisclosure agreement regarding alleged discrimination or harassment, unless requested by the aggrieved employee; and that an employee making such a request has seven days to revoke such an agreement.

The policy must be given to all employees at the time of hire. Further, if an employee makes a complaint, the employer must give the employee a copy of the policy at that time.

Prohibition on Certain Confidentiality, Nondisparagement and No-Rehire Agreements

The law provides that an employee cannot be required – as part of a settlement of a discrimination or harassment claim – to agree not to disclose the alleged conduct (including sexual assaults) nor to not disparage the employer or the alleged perpetrator. Further, an employer may not require a settling employee to agree to a no-rehire provision as a term or condition of settlement. However, an employee may request that the agreement contain any of these provisions. If the employee requests such a provision, the employee has seven days following signing the agreement to revoke it.

The Statute of Limitations on Many Discrimination and Harassment Claims Is Extended to Five Years

Currently, an employee must file a lawsuit for discrimination or harassment under Oregon law within one year of the alleged incident giving rise to the claim. This law extends that period to five years for most kinds of discrimination and harassment, thereby extending exposure for employers. The law has no impact on the statute of limitations for claims under Federal law.

"Golden Parachutes" for Perpetrators of Discrimination or Harassment Are Now Voidable

Often an executive accused of discrimination or harassment will be terminated because of the conduct, but the employer will nonetheless be required by contract to pay the executive a large severance. This law makes such provisions voidable, meaning the employer can get out of the obligation. The employer must conduct a good-faith investigation of the reports of discrimination or harassment. If after doing so, the employer determines the employee engaged in the unlawful conduct, the employer may void any separation or severance provision in an employment agreement with the employee.

This law significantly changes what employer must and may do with respect to discrimination and harassment claims. It also requires all employers to affirmatively adopt policies conforming to the Act.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have further questions on this topic, please email a member of our Labor & Employment Practice Group, or the attorney with whom you normally consult.

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