Oregon Administrative Rules › Chapter 839 - BUREAU OF LABOR AND INDUSTRIES › Division 6 - INJURED WORKERS; DISABILITY; VETERANS AND PERSONS IN UNIFORMED SERVICES › Section 839-006-0307 - Discrimination Theories: Public Accommodation of Individuals with Disabilities

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 in situations involving adverse impact, the failure to
			 permit reasonable modifications, the refusal to make reasonable accommodations,
			 the failure to design and construct covered buildings under applicable rules or
			 the failure to remove physical barriers from facilities as provided in OAR
			 839-006-0310. To be protected
			 from discrimination based on disability, an individual must have a disability,
			 as described in ORS 659A.104 and the relevant rules.
			 Reasonable modifications in services, programs or activities, provision of
			 auxiliary aids, services by state government, removal of barriers to
			 facilities, goods and services and provision of auxiliary aids by public
			 accommodations are covered by ORS
			 659A.142 and these
			 rules.
(2) 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(10)
			 and OAR 839-005-0003(12)
			 of these rules;
(b) The complainant
			 is an individual with a disability;
(c) The complainant was harmed by an action
			 of the respondent; and
(d) The
			 complainant's disability was the motivating factor for the respondent's action.
			 In determining whether the complainant'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 complainant was harmed by an action
			 of the respondent under circumstances that make it appear that the respondent
			 treated the complainant 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 complainant at all times has the burden of proving that the complainant's
			 disability was the motivating factor for the respondent's unlawful
			 action.