Oregon Hostile Work Environment Claims

Hostile work environment claims in Oregon are claims involving unlawful harassment because of sex, sexual orientation, race, age, religion, disability, national origin, and military service.  If the standards for liability are otherwise met, harassment in the workplace because of membership in one of the above-listed protected classes is unlawful under state law and, generally, under federal law.  To date, the Ninth Circuit Court of Appeals where Oregon is located, has not expressly recognized a hostile work environment claim under the Americans with Disabilities Act ("ADA") (note also that and claims under federal law are limited to employers of a certain size -- Title VII/ADA - 15; ADEA - 2o --  whereas state law generally applies to employers of every size).  Earlier this year, however, the Second Circuit Court of Appeals held in a published opinion that a hostile work environment claim is actionable under the ADA.  There is no reason why such claims should not be cognizable, and we fully expect the Ninth Circuit Court of Appeals to rule consistently with the Second Circuit when the opportunity arises. 

This article explores the general parameters of hostile work environment claims.  If you need assistance with a potential hostile work environment claim in Oregon, please feel free to contact me.  Email is the best means to initiate contact.  I can be reached at:  jim@employeelawyer.io 

1.  Actionable Hostile Work Environment Claims
Workplace harassment is a type of discrimination that is unlawful under both Oregon state law and federal law.

Federal law claims arise under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 ("ADEA"), and, the Americans with Disabilities Act of 1990 ("ADA").  U.S. Equal Opportunity Commission "Harassment"   Hostile work environment claims are now actionable under the Uniform Services Employment and Reemployment Rights Act of 1994 ("USERRA") (courts had initially held that USERRA did not recognize hostile environment claims, but the statute was amended to correct the omission).  See U.S. Department of Labor, USERRA.

Under federal law, there has been some delay in recognizing hostile work environment claims under the ADA.  This issue, too, appears to have been recently clarified, at least in one federal circuit court.  A claim under the ADA was first recognized in a published opinion in Fox v. Costco Wholesale Corporation, (2d Cir. March 2019) 

Like federal law, Oregon state law prohibits workplace harassment under all of these bases as codified in the Oregon Revised Statutes at ORS Chapter 659A.  In addition, harassment based on sexual orientation, marital status, or expunged juvenile record is unlawful under state law.  Sexual harassment based on sexual orientation is clearly unlawful under state law.  See Bearden v. N.W.E., Inc., 298 Or. 698 (Aug. 7 2019)  Under federal law, on the other hand, the question of whether sexual orientation and gender identity is covered under Title VII has been subject to a circuit split, and, in April 2019, the U.S. Supreme Court granted certiorari in three cases raising this issue.  We should have a decision from the high court in the near future (as the near future is understood in appellate court terms).  
2.  Standard for Stating a Hostile Work Environment Claim
Unlawful harassment can be perpetrated by an employee's supervisor or another supervisor in the company, by a co-worker or agent of the employer, or by third party non-employees (e.g. customers or contractors).  An employer has a legal duty to protect its employees from harassment by any of these individuals.  

The standard governing liability for harassment, however, can vary depending on the identity of the perpetrator.  For example, if the harasser is a supervisor and the harassment results in an adverse employment action, such as demotion, loss of wages or promotion, failure to hire or termination, the employer is strictly liable, i.e. there is no applicable affirmative defense.  But when the supervisor is the harasser and there is no adverse employment action, the employer may assert an affirmative defense and perhaps avoid liability if:  1) it provided reasonable options to prevent and remedy any harassment, and 2) the employee unreasonably failed to take advantage of these preventive or corrective options the employer provided.   

If the harassment is perpetrated by a co-employee, i.e. a non-supervisor or third party non-employees over whom the employer has control, the employer will be liable if the employer knew or should have known of the harassment and failed to take effective action to prevent and remedy the harassment.  

In order to successfully state a claim for hostile work environment, an employee must show by a preponderance of the evidence that:

  1. the employee was subjected to verbal comments, intimidation, or other verbal or physical conduct or threats, based on the employee's protected class (sex, race, age etc.)
  2. the conduct was unwelcome;
  3. the conduct was sufficiently severe or pervasive to alter the conditions of the employee's employment and create an abusive or hostile working environment;
  4. the employee perceived the working environment to be abusive or hostile; and
  5. a reasonable person in the employee's circumstances would consider the working environment to be abusive or hostile.

See Bearden v. N.W.E., Inc, supra.

Whether an environment constituted a hostile working environment is determined by looking at the totality of the circumstances, including the frequency and severity of the conduct, whether the conduct was physically threatening or humiliating or rather was a mere offensive utterance, and whether it unreasonably interfered with the employee's work performance.

In terms of pervasiveness, a single, egregious incident, such as a rape, will clearly constitute unlawful sexual harassment.  Less severe matters must be frequent or particularly offensive; each case must be evaluated on its unique facts. 
3.  What is Not Actionable as a Hostile Work Environment

Certain types of behavior are not 'enough,' so to speak to constitute unlawful harassment.  Mere offensive conduct that is not sufficiently severe or pervasive does not rise to the level of a hostile work environment.  As the EEOC has explained:

"Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.  To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people."  

U.S. Equal Opportunity Commission "Harassment"

In addition, conduct that is directed to an employee that is not based on protected class -- such as sex, race, age, national origin, religion, disability, military service, sexual orientation -- is not an unlawful hostile work environment.  As an employment attorney, I frequently hear descriptions of workplaces that are abusive or hostile, and certainly unfortunate, but the conduct at issue is not related to a "protected class."  Sometimes the individual engaging in the harassment is a supervisor who is ill-suited for management; other times the source of friction may be a genuine personality conflict.  In any event, if the harassment is not based on one of the protected classes mentioned above, it is not unlawful under the civil rights laws.  Occasionally this type of harassment which is not covered by state or federal civil rights laws can escalate to assault and battery, which is obviously criminally and/or civilly unlawful.  Therefore, it is important to report any significant harassment to your employer, whether it be to your manager or to human resources or someone in charge, which may include the owner in a small company.  Many employers have written policies concerning civility in the workplace, including requirements of decorum and respectful behavior toward co-workers, and these policies may be violated by any type of harassment, regardless of the applicability of civil rights laws.  
4.  Conclusion
Hostile work environment harassment is a form of discrimination under Oregon and federal law that no employee should be forced to endure in order to earn a living.  If proven in court, a full range of remedies such as lost wages, compensatory emotional distress damages, injunctive relief and attorney's fees are potentially available to you.  

If you believe that you have been, or are being, subjected to an unlawful hostile work environment based on protected class membership, please contact me.  Short statutes of limitation apply to claims of hostile work environment discrimination.  A claim must be filed under state law within 1 year and under federal law a claim must be filed with the EEOC within 180 days, or in some cases within a maximum of 300 days.  Be sure to contact an Oregon hostile work environment attorney or the U.S. Equal Employment Opportunity Commission ("EEOC") or the Oregon Bureau of Labor and Industries ("BOLI") in a timely fashion if you are experiencing discrimination or harassment in the workplace.