72nd OREGON LEGISLATIVE ASSEMBLY -- 2003 Regular Session
Sponsored by Senator CORCORAN
SUMMARY
The
following summary is not prepared by the sponsors of the measure and is not
a
part of the body
thereof subject to consideration by the Legislative Assembly. It is
an editor's
brief statement of
the essential features of the measure as introduced.
Prohibits
subjecting employee to abusive work environment or retaliation.
Establishes
employer liability
and
employer defenses. Creates private right of action and provides
remedies.
A
BILL FOR AN ACT Relating to unlawful employment practices. Be It Enacted
by the People of the State
of
Oregon:
SECTION
1. { +
Definitions.
(1)
(a) 'Abusive conduct' means conduct that a reasonable person would find hostile
or
offensive and
unrelated to
an employer's legitimate business interests. In considering
whether abusive
conduct is present, a trier of fact should
weigh the severity, nature
and
frequency of the defendant's conduct. (b)
'Abusive conduct' includes but is
not limited to:
(A)
Repeated infliction of verbal abuse such as the use of derogatory
remarks,
insults and epithets; (B)
Verbal or physical conduct that a
reasonable person would find threatening, intimidating or humiliating;
(C)
The gratuitous sabotage or undermining of an employee's work
performance; and
(D)
A single act that is especially severe and egregious.
(2)
'Abusive work environment' means a work environment where the defendant,
acting
with malice, subjects an employee
to abusive conduct so severe that
it causes tangible harm to the employee.
(3)
'Conduct' means all forms of behavior, including acts and omissions.
(4)
'Employee' means an individual employed by an employer, whereby the
individual's
labor is either controlled by
the employer or the individual is
economically dependent upon the employer in
return for performing labor.
(5)
'Employer' includes individuals, public bodies, corporations, partnerships,
associations and unincorporated organizations
that compensate
individuals in return for performing labor. (6) 'Malice' means
the desire to
see another individual suffer psychological, physical
or economic harm without
legitimate
cause or justification. Malice may be inferred from the
presence of factors
such as: (a)
Outward expressions of hostility;
(b)
Harmful conduct inconsistent with
an employer's legitimate business interests;(c)
A continuation of harmful, illegitimate
conduct after the employee requests that
the conduct cease or demonstrates
outward
signs of emotional or physical distress in the face of the conduct; or (d) Attempts to
exploit
the employee's known psychological or physical vulnerability.
7) 'Negative
employment decision' means
a termination, demotion, unfavorable reassignment,
refusal to promote or
disciplinary action.
(8)
'Physical harm' means material impairment
of an individual's
physical health or
bodily integrity as documented
by a competent
physician or supported by competent expert evidence at trial.(9)
'Psychological harm'
means material impairment of an individual's mental health
as documented by a
competent
psychologist, psychiatrist or psychotherapist or supported by
competent expert
evidence
at trial. (10)
'Tangible harm' means psychological harm or physical harm. + }
SECTION
2. { +
Findings and purposes. + } {
+ (1) The Legislative Assembly finds that:
(a)
The social and economic well-being of the state is dependent upon healthy and
productive employees;
(b)
Surveys and studies have documented that between 16
percent and 21 percent of
employees directly experience
health-endangering workplace
bullying, abuse and harassment and that this
conduct is four times
more prevalent
than sexual harassment alone;
(c)
Surveys and studies have documented that
abusive work environments can have
serious effects on the targeted
employees,
including feelings of shame and humiliation, stress, loss of sleep,
severe anxiety,
depression,
post-traumatic stress disorder, reduced immunity to infection, stress-related
gastrointestinal disorders, hypertension and pathophysiologic changes that increase
the risk of
cardiovascular diseases;
(d)
Surveys and studies have documented that
abusive work
environments
can have serious consequences for employers,
including reduced employee productivity and
morale, higher turnover and absenteeism
rates and significant increases in
medical and workers' compensation
claims; (e) Unless
mistreated employees have been subjected to abusive conduct
at work on
the basis of
race, color, sex, national
origin or age,
they are unlikely to have
legal recourse
to redress such
abusive
conduct; f)
Legal protection from abusive work environments
should not be limited to conduct
grounded in a protected class
status as that
provided for under employment discrimination statutes; and
(g)
Existing workers'
compensation plans and common
law tort actions are inadequate
to discourage this
conduct
or provide adequate redress to employees who have been harmed by
abusive work
environments.(2) The purposes of sections 1 to 9 of this
2003 Act are to:
(a) Provide legal redress for employees who
have been harmed psychologically,
physically or economically by
being deliberately subjected to abusive work
environments; and
(b) Provide a legal incentive for employers
to prevent and respond to
mistreatment of employees at work. + }
SECTION
3. { +
Unlawful employment practice. It is an unlawful employment
practice to
subject an employee
to an abusive work environment. + }
SECTION
4. { +
Retaliation. It is an unlawful employment practice to retaliate
in any
manner against an employee
because the employee has opposed
an unlawful employment practice under section 3
of this 2003
Act or because
the employee has made a
charge, testified,
assisted or participated in any
manner
in an investigation or proceeding under sections 1
to 9 of this
2003 Act, including but not limited to internal proceedings,
arbitration and mediation
proceedings and
civil actions. + }
SECTION
5. { +
Employer liability. An employer is vicariously liable
for an
unlawful employment practice under
section 3 or 4 of this 2003 Act
committed
by the employer's employee. + }
SECTION
6. { +
Civil action. (1) Section 3 or 4 of this 2003 Act
may
be enforced only by filing a civil action.(2) Any employee claiming to be
aggrieved by an unlawful employment practice specified in section
3 or 4 of this 2003 Act may file a civil action in circuit court.(3) A civil
action under this section
must be commenced within one year after
the last alleged act
that constitutes the alleged unlawful employment
practice. + }
SECTION
7. { +
Affirmative defenses. (1) It is an affirmative defense
for an
employer that: (a)
(A) The employer exercised
reasonable care to
prevent and correct promptly any actionable conduct;
and
(B) The employee unreasonably failed
to take advantage of appropriate
preventive or corrective opportunities
provided by the employer; (b) The
complaint is grounded
primarily upon a negative employment decision made
consistent with
an employer's legitimate business interests, such as a
termination or
demotion based on an employee's
poor performance; or
(c) The complaint is grounded primarily upon
a defendant's reasonable
investigation about potentially illegal
or unethical activity.
(2) The affirmative
defense in
subsection (1)(b) is not available when the actionable
conduct culminates
in a negative employment decision. + }
SECTION
8. { +
Relief. (1) When a defendant has been found to have committed
an
unlawful employment
practice under section 3 or 4 of this 2003 Act, the court
may enjoin the
defendant from
engaging in the unlawful employment practice and
may order any other
relief that is deemed appropriate,
including but not limited
to reinstatement, removal of the offending party
from the employee's
work
environment, back pay, front pay, medical expenses, compensation
for
emotional distress,
punitive damages and attorney fees. (2)
When an
employer has been found to have committed an unlawful employment
practice under section
3 or 4 of this 2003 Act that did not culminate in
a negative employment
decision, the employer's liability
for damages for emotional
distress may not exceed $25,000 and the employer
is not subject to punitive damages.
This subsection does not apply to individually named employee defendants.
+ }
SECTION
9. { + Effect
on other state laws. (1) Nothing in sections 1 to 9 of this
2003 Act may
be deemed to exempt
or relieve any person from any
liability, duty, penalty
or punishment
provided by any other law of this
state.
2)
Sections 1 to 9 of this 2003 Act supersede any
previous judicial
ruling
that limits an employee's legal remedies
under
workers' compensation laws
for injuries resulting from the underlying conduct addressed in sections 1 to 9 of
this
2003 Act. However, an employee
who believes that the employee has
been
subjected to a unlawful employment
practice under section 3 or 4 of this 2003 Act
may elect to accept
workers' compensation benefits for
injuries resulting from
the underlying conduct in
lieu of bringing a civil
action under section 6 of this
2003 Act.
An
employee who elects to accept workers' compensation benefits
may not bring
a civil action under section 6 of
this 2003 Act for the same
underlying conduct. + }
SECTION
10. { + The section captions
used in this 2003 Act
are provided only for the convenience
of the reader
and do
not become part of the statutory law of this state or
express any
legislative intent in the enactment
of this 2003 Act. + }
