839-006-0340 Discrimination Theories: Discrimination against Individuals with Disabilities by State Government or Places of Public Accommodation (1) A violation of discrimination laws against individuals with disabilities may involve either intentional or unintentional discrimination. Discrimination against individuals with disabilities need not be intentional to be unlawful. Unintentional discrimination may occur, for example, in situations involving adverse impact. To be protected from discrimination based on disability, an individual must have a disability, as defined in ORS 659A.104 and the relevant rules. (2) Substantial evidence of intentional unlawful discrimination against an individual exists if the investigation of the Civil Rights Division (“division”) reveals evidence that a reasonable person would accept as sufficient to support the following elements: (a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(14) of these rules; (b) The individual has a disability; (c) The individual was harmed by an action of the respondent; and (d) The individual’s disability was the motivating factor for the respondent’s action. In determining whether the individual’s disability was the motivating factor for the respondent’s action, the division uses whichever of the following theories applies: (A) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because that individual has a disability. (B) Different or Unequal Treatment Theory: The respondent treats individuals with disabilities differently than others who do not have disabilities. When the respondent makes this differentiation because of the individual’s disability and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment: (i) There must be substantial evidence that the individual was harmed by an action of the respondent under circumstances that make it appear that the respondent treated the individual differently than comparably situated individuals who do not have disabilities. Substantial evidence of discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support that an individual’s disability was a motivating factor for the respondent’s alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of unlawful discrimination exists. (I) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination. (II) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent’s action, but the division finds the individual’s disability was also a substantial factor in the respondent’s action, the division will determine there is substantial evidence of discrimination. (ii) The individual with a disability at all times has the burden of proving that the individual’s disability was the motivating factor for the respondent’s unlawful action. (3) Adverse impact by a place of public accommodation or by state government on the basis of disability: Substantial evidence of adverse impact discrimination does not require establishment of intentional discrimination as provided in (2) of this rule. Adverse impact discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements: (a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(12) of these rules; (b) The respondent has a standard or policy that is applied equally. (c) The standard or policy has the effect of screening out or otherwise affecting members of a protected class at a significantly higher rate than others who are not members of that protected class; and (d) The complainant is a member of the protected class adversely affected by the respondent’s standard or policy and has been harmed by the respondent’s application of the standard or policy. (4) Harassment by a place of public accommodation or by state government on the basis of disability: (a) Conduct of a verbal or physical nature on the basis of disability is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (2) of this rule, is shown and: (A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of creating an intimidating, hostile or offensive environment; or (B) Submission to such conduct is made either explicitly or implicitly a term or condition of receiving services, accommodations, advantages, facilities or privileges from a place of public accommodation or services, programs or activities of state government; or (C) Submission to or rejection of such conduct is used as the basis for decisions affecting that individual. (b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive environment is whether a reasonable person in the circumstances of the individual against whom the harassment is directed would so perceive it. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 659A.103 & 659A.142 History: BLI 12-2015, f. & cert. ef. 8-28-15 Renumbered from 839-006-0307 by BLI 15-2013, f. & cert. ef 12-30-13 BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11 BLI 8-2010, f. & cert. ef. 2-24-10