Current through Register Vol. 63, No. 12, December 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.
(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.
Stat. Auth.: ORS
659A.805
Stats. Implemented: ORS
659A.103 &
659A.142
