Oregon Administrative Rules › Chapter 839 - BUREAU OF LABOR AND INDUSTRIES › Division 5 - DISCRIMINATION › Section 839-005-0010 - Discrimination Theories: Employment

Current through Register Vol. 63, No. 7, July 1, 2024
(1)
			 Substantial evidence of intentional unlawful 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 and OAR
			 839-005-0003;
(b) The aggrieved person is a member of a
			 protected class;
(c) The aggrieved
			 person was harmed by an action of the respondent; and
(d) The aggrieved person's protected class
			 was the motivating factor for the respondent's action. In determining whether
			 the aggrieved person's protected class was the reason 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 of that
			 individual's membership in a protected class, unless the respondent can show
			 that a bona fide occupational qualification or a bona fide voluntary,
			 court-ordered affirmative action plan (OAR
			 839-005-0013) allows the
			 action.
(B) Different or Unequal
			 Treatment Theory: The respondent treats members of a protected class
			 differently than others who are not members of that protected class. When the
			 respondent makes this differentiation because of the individual's protected
			 class 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 aggrieved person was harmed by an action of the respondent
			 under circumstances that make it appear that the respondent treated the
			 aggrieved person differently than comparably situated individuals who were not
			 members of the aggrieved person's protected class. Substantial evidence of
			 discrimination exists if the division's investigation reveals evidence that a
			 reasonable person would accept as sufficient to support that protected class
			 membership 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 protected class membership was also a
			 motivating factor in the respondent's action, the division will determine there
			 is substantial evidence of discrimination.
(ii) The aggrieved person at all times has
			 the burden of proving that the aggrieved person's protected class was the
			 reason for the respondent's unlawful action.