Oregon Administrative Rules › Chapter 839 - BUREAU OF LABOR AND INDUSTRIES › Division 6 - INJURED WORKERS; DISABILITY; VETERANS AND PERSONS IN UNIFORMED SERVICES › Section 839-006-0340 - Discrimination Theories: Discrimination against Individuals with Disabilities by State Government or Places of Public Accommodation

Current through Register Vol. 63, No. 7, July 1, 2024
(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.