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     72nd OREGON LEGISLATIVE ASSEMBLY -- 2003 Regular Session
                         Senate Bill 496
Sponsored by Senator CORCORAN



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 



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. + }




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