Current through Register Vol. 63, No. 3, March 1, 2024
(1) For the purposes of housing
discrimination complaints under ORS
659A.145 or
659A.421 or discrimination
complaints under the federal Fair Housing Act (42 U.S.C. §3601-3617) an
aggrieved person need not be a member of a protected class in order to file a
complaint of housing discrimination.
(2) Substantial evidence of intentional
unlawful discrimination exists if the division's investigation reveals
reasonable cause for the commissioner to believe the facts concerning the
alleged discriminatory housing practice are sufficient to warrant the
initiation of a civil action in circuit court under one of the following
theories:
(a) Specific Intent Theory: The
respondent knowingly and purposefully discriminates against an individual
because of that individual's membership in a protected class.
(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:
(A) There must be substantial evidence that
the individual was harmed or was about to be harmed by the action of the
respondent under circumstances that make it appear that the respondent treated
the individual differently than comparably situated individuals who were not
members of the individual'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 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
substantial factor in the respondent's action, the division will determine
there is substantial evidence of unlawful discrimination.
(B) The aggrieved person at all times has the
burden of proving that the individual's protected class was the motivating
factor for the respondent's unlawful action.
(3) Adverse Impact Discrimination in Housing:
(a) For the purposes of interpreting ORS
90.390, a court or the
commissioner may find that a person has violated or is going to violate
659A.145 or
659A.421 if:
(A) The person applies a facially neutral
housing policy to a member of a protected class;
(B) Application of the policy adversely
impacts members of the protected class to a greater extent than the policy
impacts persons generally.
(b) In determining under subsection (a) of
this section whether a violation has occurred or will occur and, if it is
determined that a violation has occurred or will occur, what relief should be
granted, a court or the commissioner will consider:
(A) The significance of the adverse impact on
the protected class;
(B) The
importance and necessity of any business purpose for the facially neutral
housing policy; and
(C) The
availability of less discriminatory alternatives for achieving the business
purpose for the facially neutral housing policy.
(4) As used in enforcing ORS
659A.145 or
659A.421 or the federal Fair
Housing Act (42 U.S.C. §3601-3617), harassment on the basis of a protected
class is an unlawful practice in housing when:
(a) Conduct of a verbal or physical nature
relating to protected classes 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 housing; or
(C) Submission to or rejection of such
conduct is used as the basis for housing 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.
(5) Tenant-on-tenant harassment: A housing
provider is liable for a resident's harassment of another resident when the
housing provider knew or should have known of the conduct, unless the housing
provider took immediate and appropriate corrective action.
(6) Harassment by Employees or Agents: A
housing provider is liable for harassment of a resident by the housing
provider's employees or agents when the housing provider knew or should have
known of the conduct, unless the housing provider took immediate and
appropriate corrective action.
(7)
Discrimination based on disability may involve intentional discrimination,
including harassment, or discrimination that need not be intentional, including
adverse impact, or the failure to permit reasonable modifications, the refusal
to make reasonable accommodations or the failure to design and construct
covered buildings under applicable rules. 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 accommodation in real property transactions is covered by
659A.145 and OAR 839-005-0220.
Reasonable modifications in housing and the design and construction of covered
buildings are covered by ORS
659A.145. Claims of disability
discrimination brought under federal housing law are defined under that
law.
Stat. Auth.: ORS
659A.805
Stats. Implemented: ORS
659A.103 -
659A.142;
659A.145,
659A.421
