75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2565
House Bill 3449
Sponsored by COMMITTEE ON RULES
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 discrimination against individual because of
individual's height or weight.
A BILL FOR AN ACT
Relating to discrimination based on certain physical
characteristics; creating new provisions; and amending ORS
10.030, 20.107, 179.750, 240.306, 336.067, 338.125, 418.648,
443.739, 659.850, 659A.003, 659A.006, 659A.030, 659A.403,
659A.406, 659A.409, 659A.421, 659A.805, 659A.815 and 659A.885
and section 2, chapter 36, Oregon Laws 2008.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 10.030, as amended by section 4, chapter 70,
Oregon Laws 2007, and section 13, chapter 100, Oregon Laws 2007,
is amended to read:
10.030. (1) Except as otherwise specifically provided by
statute, the opportunity for jury service may not be denied or
limited on the basis of race, religion, sex, sexual orientation,
national origin, { + height, weight, + } age, income, occupation
or any other factor that discriminates against a cognizable group
in this state.
(2) Any person is eligible to act as a juror in a civil trial
unless the person:
(a) Is not a citizen of the United States;
(b) Does not live in the county in which summoned for jury
service;
(c) Is less than 18 years of age; or
(d) Has had rights and privileges withdrawn and not restored
under ORS 137.281.
(3)(a) Any person is eligible to act as a juror in a criminal
trial, beginning on or after December 5, 1996, unless the person:
(A) Is not a citizen of the United States;
(B) Does not live in the county in which summoned for jury
service;
(C) Is less than 18 years of age;
(D) Has had rights and privileges withdrawn and not restored
under ORS 137.281; or
(E) Has been convicted of a felony or served a felony sentence
within the prior 15 years.
(b) As used in this subsection:
(A) 'Felony sentence' includes any incarceration, post-prison
supervision, parole or probation imposed upon conviction of a
felony or served as a result of conviction of a felony.
(B) 'Has been convicted of a felony' has the meaning given that
term in ORS 166.270.
(4) A person who is blind, hard of hearing or speech impaired
or who has a physical disability is not ineligible to act as a
juror and may not be excluded from a jury list or jury service on
the basis of blindness, hearing or speech impairment or physical
disability alone.
(5) A person is ineligible to act as a juror in any circuit
court of this state within 24 months after being discharged from
jury service in a federal court in this state or circuit court of
this state unless that person's service as a juror is required
because of a need for additional jurors.
(6) In addition to the disqualifications listed in subsection
(2) of this section, a person is ineligible to act as a juror on
a grand jury if the person has been convicted of a felony, other
than a felony traffic offense, or has served a felony sentence,
other than a sentence for a felony traffic offense, within the
prior 15 years. As used in this subsection, 'conviction' means an
adjudication of guilt upon a verdict or finding entered in a
criminal proceeding in a court of competent jurisdiction.
SECTION 2. ORS 20.107, as amended by section 14, chapter 100,
Oregon Laws 2007, is amended to read:
20.107. (1) In any civil judicial proceeding, including
judicial review of an administrative proceeding based on a claim
of unlawful discrimination, the court shall award to the
prevailing plaintiff attorney and expert witness fees reasonably
and necessarily incurred in connection with the discrimination
claim, at the trial court or agency level and on appeal. The
court may award reasonable attorney fees and expert witness fees
incurred by a defendant who prevails in the action if the court
determines that the plaintiff had no objectively reasonable basis
for asserting a claim or no reasonable basis for appealing an
adverse decision of a trial court or agency.
(2) In making an award under this section, the court shall
calculate attorney and expert witness fees on the basis of a
reasonable hourly rate at the time the award is made, multiplied
by the amount of time actually and reasonably spent in connection
with the discrimination claim.
(3) When an award under this section is made against a state
agency or an officer or employee of a state agency, the award
shall be paid by the agency directly from funds available to it.
(4) As used in this section, 'unlawful discrimination ' means
discrimination based upon personal characteristics including, but
not limited to, race, religion, sex, sexual orientation, national
origin, { + height, weight, + } alienage, marital status or age.
SECTION 3. ORS 179.750, as amended by section 20, chapter 100,
Oregon Laws 2007, is amended to read:
179.750. (1) Discrimination may not be made in the admission,
accommodation, care, education or treatment of any person in a
state institution because the person does or does not contribute
to the cost of the care.
(2) Discrimination may not be made in the provision of or
access to educational facilities and services and recreational
facilities and services to any person in the state institutions
enumerated in ORS 420.005 or Department of Corrections
institutions as defined in ORS 421.005 on the basis of race,
religion, sex, sexual orientation, national origin { + , height,
weight + } or marital status of the person. This subsection does
not require combined domiciliary facilities at the state
institutions to which it applies.
SECTION 4. ORS 240.306, as amended by section 22, chapter 100,
Oregon Laws 2007, is amended to read:
240.306. (1) Recruiting, selecting and promoting employees
shall be on the basis of their relative ability, knowledge,
experience and skills, determined by open competition and
consideration of qualified applicants, without regard to an
individual's race, color, religion, sex, sexual orientation,
national origin, { + height, weight, + } marital status, age,
disability, political affiliation or other nonjob related
factors, with proper regard for an individual's privacy. Nothing
in this subsection shall be construed to enlarge or diminish the
obligation of the state or the rights of employees concerning
claims of employment discrimination as prescribed by applicable
state and federal employment discrimination laws.
(2) The Oregon Department of Administrative Services shall
establish procedures to provide for statewide open recruitment
and selection for classifications that are common to state
agencies. The procedures shall include adequate public notice,
affirmative action to seek out underutilized members of protected
minorities, and job related testing. The department may delegate
to individual operating agencies the responsibility for
recruitment and selection of classifications where appropriate.
(3) Competition for appropriate positions may be limited to
facilitate employment of those with a substantial disability or
who are economically disadvantaged, or for purposes of
implementing a specified affirmative action program.
(4) Appointments to positions in state service shall be made on
the basis of qualifications and merit by selection from eligible
lists established by the department or a delegated operating
agency.
(5)(a) Noncompetitive selection and appointment procedures may
be used for unskilled or semiskilled positions, or where job
related ranking measures are not practical or appropriate.
(b) Noncompetitive selection and appointment or direct
appointment also may be used by agency appointing authorities to
fill positions that:
(A) Require special or unique skills such as expert
professional level or executive positions; or
(B) Have critical timing requirements affecting recruitment.
(6) Minimum qualifications and performance requirements and
duties of a classification may be appropriately modified to
permit the appointment and promotion of trainees to positions
normally filled at full proficiency level.
(7) The department or delegated agencies shall establish
systems to provide opportunities for promotion through
meritorious service, training, education and career development
assignments. The department shall certify to the eligibility of
persons selected for promotion or delegate that responsibility to
operating agencies in appropriate situations. Provision shall be
made to bring persons into state service through open competition
at higher levels when the competition provides abilities not
available among existing employees, enrich state service or
contribute to improved employment opportunity for
underrepresented groups.
SECTION 5. ORS 336.067 is amended to read:
336.067. (1) In public schools special emphasis shall be given
to instruction in:
(a) Honesty, morality, courtesy, obedience to law, respect for
the national flag, the Constitution of the United States and the
Constitution of the State of Oregon, respect for parents and the
home, the dignity and necessity of honest labor and other lessons
that tend to promote and develop an upright and desirable
citizenry.
(b) Respect for all humans, regardless of race, color, creed,
national origin, { + height, weight, + } religion, age, sex or
disability.
(c) Acknowledgment of the dignity and worth of individuals and
groups and their participative roles in society.
(d) Humane treatment of animals.
(e) The effects of tobacco, alcohol, drugs and controlled
substances upon the human system.
(2) The Superintendent of Public Instruction shall prepare an
outline with suggestions that will best accomplish the purpose of
this section, and shall incorporate the outline in the courses of
study for all public schools.
SECTION 6. ORS 338.125, as amended by section 23, chapter 100,
Oregon Laws 2007, is amended to read:
338.125. (1) Student enrollment in a public charter school
shall be voluntary. All students who reside within the school
district where the public charter school is located are eligible
for enrollment at a public charter school. If the number of
applications from students who reside within the school district
exceeds the capacity of a program, class, grade level or
building, the public charter school shall select students through
an equitable lottery selection process. However, after a public
charter school has been in operation for one or more years, the
public charter school may give priority for admission to
students:
(a) Who were enrolled in the school in the prior year; or
(b) Who have siblings who are presently enrolled in the school
and who were enrolled in the school in the prior year.
(2)(a) If space is available a public charter school may admit
students who do not reside in the school district in which the
public charter school is located.
(b) Notwithstanding paragraph (a) of this subsection, if a
public charter school offers any online courses as part of the
curriculum of the school, then 50 percent or more of the students
who attend the public charter school must reside in the school
district in which the public charter school is located.
(3) A public charter school may not limit student admission
based on race, religion, sex, sexual orientation, ethnicity,
national origin, { + height, weight, + } disability, income
level, proficiency in the English language or athletic ability,
but may limit admission to students within a given age group or
grade level.
(4) A public charter school may conduct fund-raising
activities. However, a public charter school may not require a
student to participate in fund-raising activities as a condition
of admission to the public charter school.
SECTION 7. ORS 418.648, as amended by section 24, chapter 100,
Oregon Laws 2007, is amended to read:
418.648. A foster parent has the right to:
(1) Be treated with dignity, respect and trust as a member of a
team, including respect for the family values and routines of the
foster parent.
(2) Be included as a valued member of a team that provides care
and planning for a foster child placed in the home of the foster
parent.
(3) Receive support services, as resources permit, from the
Department of Human Services that are designed to assist in the
care of the foster child placed in the home of the foster parent.
(4) Be informed of any condition that relates solely to a
foster child placed in the home of the foster parent that may
jeopardize the health or safety of the foster parent or other
members of the home or alter the manner in which foster care
should be provided to the foster child. The information shall
include complete access to written reports, psychological
evaluations and diagnoses that relate solely to a foster child
placed in the home of the foster parent provided that
confidential information given to a foster parent must be kept
confidential by the foster parent, except as necessary to promote
or to protect the health and welfare of the foster child and the
community.
(5) Have input into a permanency plan for a foster child placed
in the home of the foster parent.
(6) Receive assistance from the department in dealing with
family loss and separation when the foster child leaves the home
of the foster parent.
(7) Be informed of all policies and procedures of the
department that relate to the role of the foster parent.
(8) Be informed of how to receive services and to have access
to department personnel or service providers 24 hours a day,
seven days a week.
(9) Initiate an inactive referral status for a reasonable
period of time, not to exceed 12 months, to allow a foster parent
relief from caring for foster children.
(10) Not be discriminated against on the basis of race, color,
religion, sex, sexual orientation, national origin, { + height,
weight, + } age or disability.
(11) Be notified of the foster parent's right to limited
participation in proceedings in the juvenile court and provided
with an explanation of that right.
SECTION 8. ORS 443.739, as amended by section 27, chapter 100,
Oregon Laws 2007, is amended to read:
443.739. Residents of adult foster homes have the following
rights. Providers shall guarantee these rights and help residents
exercise them. The provider shall post a copy of the Residents'
Bill of Rights in the entry or other equally prominent place in
the adult foster home. The Residents' Bill of Rights states that
each resident of an adult foster home has the right to:
(1) Be treated as an adult, with respect and dignity.
(2) Be informed of all resident rights and all house rules.
(3) Be encouraged and assisted to exercise legal rights,
including the right to vote.
(4) Be informed of the resident's medical condition and the
right to consent to or refuse treatment.
(5) Receive appropriate care and services, and prompt medical
care as needed.
(6) A safe and secure environment.
(7) Be free from mental and physical abuse.
(8) Be free from chemical or physical restraints except as
ordered by a physician or other qualified practitioner.
(9) Complete privacy when receiving treatment or personal care.
(10) Associate and communicate privately with any person the
resident chooses.
(11) Send and receive personal mail unopened.
(12) Participate in activities of social, religious and
community groups.
(13) Have medical and personal information kept confidential.
(14) Keep and use a reasonable amount of personal clothing and
belongings, and to have a reasonable amount of private, secure
storage space.
(15) Manage the resident's own money and financial affairs
unless legally restricted.
(16) Be free from financial exploitation. The provider may not
charge or ask for application fees or nonrefundable deposits and
may not solicit, accept or receive money or property from a
resident other than the amount agreed to for services.
(17) A written agreement regarding the services to be provided
and the rate schedule to be charged. The provider must give 30
days' written notice before any change in the rates or the
ownership of the home.
(18) Not to be transferred or moved out of the adult foster
home without 30 days' advance written notice and an opportunity
for a hearing. A provider may transfer or discharge a resident
only for medical reasons including a medical emergency described
in ORS 443.738 (11)(b), or for the welfare of the resident or
other residents, or for nonpayment.
(19) Be free of discrimination in regard to race, color,
religion, sex, sexual orientation { + , + } { - or - }
national origin { + , height or weight + }.
(20) Make suggestions and complaints without fear of
retaliation.
SECTION 9. ORS 659.850, as amended by section 29, chapter 100,
Oregon Laws 2007, is amended to read:
659.850. (1) As used in this section, 'discrimination ' means
any act that unreasonably differentiates treatment, intended or
unintended, or any act that is fair in form but discriminatory in
operation, either of which is based on race, color, religion,
sex, sexual orientation, national origin, { + height,
weight, + } marital status, age or disability. 'Discrimination'
does not include enforcement of an otherwise valid dress code or
policy, as long as the code or policy provides, on a case-by-case
basis, for reasonable accommodation of an individual based on the
health and safety needs of the individual.
(2) A person may not be subjected to discrimination in any
public elementary, secondary or community college education
program or service, school or interschool activity or in any
higher education program or service, school or interschool
activity where the program, service, school or activity is
financed in whole or in part by moneys appropriated by the
Legislative Assembly.
(3) The State Board of Education and the State Board of Higher
Education shall establish rules necessary to ensure compliance
with subsection (2) of this section in the manner required by ORS
chapter 183.
SECTION 10. ORS 659A.003, as amended by section 2, chapter 100,
Oregon Laws 2007, and section 1a, chapter 903, Oregon Laws 2007,
is amended to read:
659A.003. The purpose of this chapter is to encourage the
fullest utilization of the available workforce by removing
arbitrary standards of race, color, religion, sex, sexual
orientation, national origin, { + height, weight, + } marital
status, age or disability as a barrier to employment of the
inhabitants of this state, and to ensure the human dignity of all
people within this state and protect their health, safety and
morals from the consequences of intergroup hostility, tensions
and practices of unlawful discrimination of any kind based on
race, color, religion, sex, sexual orientation, national origin,
{ + height, weight, + } marital status, age, disability or
familial status. To accomplish this purpose, the Legislative
Assembly intends by this chapter to provide:
(1) A program of public education calculated to eliminate
attitudes upon which practices of unlawful discrimination because
of race, color, religion, sex, sexual orientation, national
origin, { + height, weight, + } marital status, age, disability
or familial status are based.
(2) An adequate remedy for persons aggrieved by certain acts of
unlawful discrimination because of race, color, religion, sex,
sexual orientation, national origin, { + height, weight, + }
marital status, disability or familial status, or unreasonable
acts of discrimination in employment based upon age.
(3) An adequate administrative machinery for the orderly
resolution of complaints of unlawful discrimination through a
procedure involving investigation, conference, conciliation and
persuasion, to encourage the use in good faith of the machinery
by all parties to a complaint of unlawful discrimination and to
discourage unilateral action that makes moot the outcome of final
administrative or judicial determination on the merits of the
complaint.
SECTION 11. ORS 659A.006, as amended by section 3, chapter 100,
Oregon Laws 2007, and section 2, chapter 903, Oregon Laws 2007,
is amended to read:
659A.006. (1) It is declared to be the public policy of Oregon
that practices of unlawful discrimination against any of its
inhabitants because of race, color, religion, sex, sexual
orientation, national origin, { + height, weight, + } marital
status, age, disability or familial status are a matter of state
concern and that this discrimination not only threatens the
rights and privileges of its inhabitants but menaces the
institutions and foundation of a free democratic state.
(2) The opportunity to obtain employment or housing or to use
and enjoy places of public accommodation without unlawful
discrimination because of race, color, religion, sex, sexual
orientation, national origin, { + height, weight, + } marital
status, age or disability hereby is recognized as and declared to
be a civil right.
(3) It is not an unlawful practice for a bona fide church or
other religious institution to take any action with respect to
housing or the use of facilities based on a bona fide religious
belief about sexual orientation as long as the housing or the use
of facilities is closely connected with or related to the primary
purposes of the church or institution and is not connected with a
commercial or business activity that has no necessary
relationship to the church or institution.
(4) It is not an unlawful employment practice for a bona fide
church or other religious institution, including but not limited
to a school, hospital or church camp, to prefer an employee, or
an applicant for employment, of one religious sect or persuasion
over another if:
(a) The religious sect or persuasion to which the employee or
applicant belongs is the same as that of the church or
institution;
(b) In the opinion of the church or institution, the preference
will best serve the purposes of the church or institution; and
(c) The employment involved is closely connected with or
related to the primary purposes of the church or institution and
is not connected with a commercial or business activity that has
no necessary relationship to the church or institution.
(5) It is not an unlawful employment practice for a bona fide
church or other religious institution to take any employment
action based on a bona fide religious belief about sexual
orientation:
(a) In employment positions directly related to the operation
of a church or other place of worship, such as clergy, religious
instructors and support staff;
(b) In employment positions in a nonprofit religious school,
nonprofit religious camp, nonprofit religious day care center,
nonprofit religious thrift store, nonprofit religious bookstore,
nonprofit religious radio station or nonprofit religious shelter;
or
(c) In other employment positions that involve religious
activities, as long as the employment involved is closely
connected with or related to the primary purposes of the church
or institution and is not connected with a commercial or business
activity that has no necessary relationship to the church or
institution.
SECTION 12. ORS 659A.030, as amended by section 4, chapter 100,
Oregon Laws 2007, is amended to read:
659A.030. (1) It is an unlawful employment practice:
(a) For an employer, because of an individual's race, color,
religion, sex, sexual orientation, national origin, { + height,
weight, + } marital status or age if the individual is 18 years
of age or older, or because of the race, color, religion, sex,
sexual orientation, national origin, { + height, weight, + }
marital status or age of any other person with whom the
individual associates, or because of an individual's juvenile
record that has been expunged pursuant to ORS 419A.260 and
419A.262, to refuse to hire or employ the individual or to bar or
discharge the individual from employment. However, discrimination
is not an unlawful employment practice if the discrimination
results from a bona fide occupational qualification reasonably
necessary to the normal operation of the employer's business.
(b) For an employer, because of an individual's race, color,
religion, sex, sexual orientation, national origin, { + height,
weight, + } marital status or age if the individual is 18 years
of age or older, or because of the race, color, religion, sex,
sexual orientation, national origin, { + height, weight, + }
marital status or age of any other person with whom the
individual associates, or because of an individual's juvenile
record that has been expunged pursuant to ORS 419A.260 and
419A.262, to discriminate against the individual in compensation
or in terms, conditions or privileges of employment.
(c) For a labor organization, because of an individual's race,
color, religion, sex, sexual orientation, national origin, { +
height, weight, + } marital status or age if the individual is 18
years of age or older, or because of an individual's juvenile
record that has been expunged pursuant to ORS 419A.260 and
419A.262, to exclude or to expel from its membership the
individual or to discriminate in any way against the individual
or any other person.
(d) For any employer or employment agency to print or circulate
or cause to be printed or circulated any statement, advertisement
or publication, or to use any form of application for employment
or to make any inquiry in connection with prospective employment
that expresses directly or indirectly any limitation,
specification or discrimination as to an individual's race,
color, religion, sex, sexual orientation, national origin, { +
height, weight, + } marital status or age if the individual is 18
years of age or older, or on the basis of an expunged juvenile
record, or any intent to make any such limitation, specification
or discrimination, unless based upon a bona fide occupational
qualification. Identification of prospective employees according
to race, color, religion, sex, sexual orientation, national
origin, { + height, weight, + } marital status or age does not
violate this section unless the Commissioner of the Bureau of
Labor and Industries, after a hearing conducted pursuant to ORS
659A.805, determines that the designation expresses an intent to
limit, specify or discriminate on the basis of race, color,
religion, sex, sexual orientation, national origin, { + height,
weight, + } marital status or age.
(e) For an employment agency, because of an individual's race,
color, religion, sex, sexual orientation, national origin, { +
height, weight, + } marital status or age if the individual is 18
years of age or older, or because of the race, color, religion,
sex, sexual orientation, national origin, { + height,
weight, + } marital status or age of any other person with whom
the individual associates, or because of an individual's juvenile
record that has been expunged pursuant to ORS 419A.260 and
419A.262, to classify or refer for employment, or to fail or
refuse to refer for employment, or otherwise to discriminate
against the individual. However, it is not an unlawful
employment practice for an employment agency to classify or refer
for employment an individual when the classification or referral
results from a bona fide occupational qualification reasonably
necessary to the normal operation of the employer's business.
(f) For any person to discharge, expel or otherwise
discriminate against any other person because that other person
has opposed any unlawful practice, or because that other person
has filed a complaint, testified or assisted in any proceeding
under this chapter or has attempted to do so.
(g) For any person, whether an employer or an employee, to aid,
abet, incite, compel or coerce the doing of any of the acts
forbidden under this chapter or to attempt to do so.
(2) The provisions of this section apply to an apprentice under
ORS 660.002 to 660.210, but the selection of an apprentice on the
basis of the ability to complete the required apprenticeship
training before attaining the age of 70 years is not an unlawful
employment practice. The commissioner shall administer this
section with respect to apprentices under ORS 660.002 to 660.210
equally with regard to all employees and labor organizations.
(3) The compulsory retirement of employees required by law at
any age is not an unlawful employment practice if lawful under
federal law.
(4)(a) It is not an unlawful employment practice for an
employer or labor organization to provide or make financial
provision for child care services of a custodial or other nature
to its employees or members who are responsible for a minor
child.
(b) As used in this subsection, 'responsible for a minor child'
means having custody or legal guardianship of a minor child or
acting in loco parentis to the child.
(5) This section does not prohibit an employer from enforcing
an otherwise valid dress code or policy, as long as the employer
provides, on a case-by-case basis, for reasonable accommodation
of an individual based on the health and safety needs of the
individual.
SECTION 13. ORS 659A.403, as amended by section 5, chapter 100,
Oregon Laws 2007, is amended to read:
659A.403. (1) Except as provided in subsection (2) of this
section, all persons within the jurisdiction of this state are
entitled to the full and equal accommodations, advantages,
facilities and privileges of any place of public accommodation,
without any distinction, discrimination or restriction on account
of race, color, religion, sex, sexual orientation, national
origin, { + height, weight, + } marital status or age if the
individual is 18 years of age or older.
(2) Subsection (1) of this section does not prohibit:
(a) The enforcement of laws governing the consumption of
alcoholic beverages by minors and the frequenting by minors of
places of public accommodation where alcoholic beverages are
served; { - or - }
{ + (b) The enforcement of laws imposing restrictions on
persons who have a specified height or weight, if the
restrictions are imposed for the preservation of the public
accommodation or the safety of the person or others; or + }
{ - (b) - } { + (c) + } The offering of special rates or
services to persons 50 years of age or older.
(3) It is an unlawful practice for any person to deny full and
equal accommodations, advantages, facilities and privileges of
any place of public accommodation in violation of this section.
SECTION 14. ORS 659A.406, as amended by section 6, chapter 100,
Oregon Laws 2007, is amended to read:
659A.406. Except as otherwise authorized by ORS 659A.403, it is
an unlawful practice for any person to aid or abet any place of
public accommodation, as defined in ORS 659A.400, or any employee
or person acting on behalf of the place of public accommodation
to make any distinction, discrimination or restriction on account
of race, color, religion, sex, sexual orientation, national
origin, { + height, weight, + } marital status or age if the
individual is 18 years of age or older.
SECTION 15. ORS 659A.409, as amended by section 7, chapter 100,
Oregon Laws 2007, is amended to read:
659A.409. { + (1) + } Except as provided by { - laws
governing the consumption of alcoholic beverages by minors and
the frequenting by minors of places of public accommodation where
alcoholic beverages are served, and except for special rates or
services offered to persons 50 years of age or older - } { +
subsection (2) of this section + }, it is an unlawful practice
for any person acting on behalf of any place of public
accommodation as defined in ORS 659A.400 to publish, circulate,
issue or display, or cause to be published, circulated, issued or
displayed, any communication, notice, advertisement or sign of
any kind to the effect that any of the accommodations,
advantages, facilities, services or privileges of the place of
public accommodation will be refused, withheld from or denied to,
or that any discrimination will be made against, any person on
account of race, color, religion, sex, sexual orientation,
national origin, { + height, weight, + } marital status or age
if the individual is 18 years of age or older.
{ + (2) Subsection (1) of this section does not prohibit:
(a) The enforcement of laws governing the consumption of
alcoholic beverages by minors and the frequenting by minors of
places of public accommodation where alcoholic beverages are
served;
(b) The enforcement of laws imposing restrictions on persons
who have a specified height or weight, if the restrictions are
imposed for the preservation of the public accommodation or the
safety of the person or others; or
(c) The offering of special rates or services to persons 50
years of age or older. + }
SECTION 16. ORS 659A.421, as amended by section 8, chapter 100,
Oregon Laws 2007, section 4a, chapter 903, Oregon Laws 2007, and
section 6, chapter 36, Oregon Laws 2008, is amended to read:
659A.421. (1) As used in this section:
(a) 'Dwelling' means:
(A) A building or structure, or portion of a building or
structure, that is occupied, or designed or intended for
occupancy, as a residence by one or more families; or
(B) Vacant land offered for sale or lease for the construction
or location of a building or structure, or portion of a building
or structure, that is occupied, or designed or intended for
occupancy, as a residence by one or more families.
(b) 'Purchaser' includes an occupant, prospective occupant,
renter, prospective renter, lessee, prospective lessee, buyer or
prospective buyer.
(c) 'Real property' includes a dwelling.
(d) 'Source of income' does not include federal rent subsidy
payments under 42 U.S.C. 1437f, income derived from a specific
occupation or income derived in an illegal manner.
(2) A person may not, because of the race, color, religion,
sex, sexual orientation, national origin, { + height,
weight, + } marital status, familial status or source of income
of any person:
(a) Refuse to sell, lease or rent any real property to a
purchaser.
(b) Expel a purchaser from any real property.
(c) Make any distinction, discrimination or restriction against
a purchaser in the price, terms, conditions or privileges
relating to the sale, rental, lease or occupancy of real property
or in the furnishing of any facilities or services in connection
therewith.
(d) Attempt to discourage the sale, rental or lease of any real
property to a purchaser.
(e) Publish, circulate, issue or display, or cause to be
published, circulated, issued or displayed, any communication,
notice, advertisement or sign of any kind relating to the sale,
rental or leasing of real property that indicates any preference,
limitation, specification or unlawful discrimination based on
race, color, religion, sex, sexual orientation, national origin,
{ + height, weight, + } marital status, familial status or
source of income.
(f) Assist, induce, incite or coerce another person to commit
an act or engage in a practice that violates this section.
(g) Coerce, intimidate, threaten or interfere with any person
in the exercise or enjoyment of, or on account of the person
having exercised or enjoyed or having aided or encouraged any
other person in the exercise or enjoyment of, any right granted
or protected by this section.
(h) Deny access to, or membership or participation in, any
multiple listing service, real estate brokers' organization or
other service, organization or facility relating to the business
of selling or renting dwellings, or discriminate against any
person in the terms or conditions of the access, membership or
participation.
(i) Represent to a person that a dwelling is not available for
inspection, sale or rental when the dwelling in fact is available
for inspection, sale or rental.
(j) Otherwise make unavailable or deny a dwelling to a person.
(3)(a) A person whose business includes engaging in residential
real estate related transactions may not discriminate against any
person in making a transaction available, or in the terms or
conditions of the transaction, because of race, color, religion,
sex, sexual orientation, national origin, { + height,
weight, + } marital status, familial status or source of income.
(b) As used in this subsection, 'residential real estate
related transaction' means any of the following:
(A) The making or purchasing of loans or providing other
financial assistance:
(i) For purchasing, constructing, improving, repairing or
maintaining a dwelling; or
(ii) Secured by residential real estate; or
(B) The selling, brokering or appraising of residential real
property.
(4) A real estate licensee may not accept or retain a listing
of real property for sale, lease or rental with an understanding
that a purchaser may be discriminated against with respect to the
sale, rental or lease thereof because of race, color, religion,
sex, sexual orientation, national origin, { + height,
weight, + } marital status, familial status or source of income.
(5) A person may not, for profit, induce or attempt to induce
any other person to sell or rent any dwelling by representations
regarding the entry or prospective entry into the neighborhood of
a person or persons of a particular race, color, religion, sex,
sexual orientation, national origin, { + height, weight, + }
marital status, familial status or source of income.
(6) This section does not apply with respect to { + :
(a) + } Sex distinction, discrimination or restriction if the
real property involved is such that the application of this
section would necessarily result in common use of bath or bedroom
facilities by unrelated persons of opposite sex { - . - } { + ;
or
(b) Weight distinction, discrimination or restriction that is
imposed for the preservation of the real property or the safety
of the person or others. + }
(7)(a) This section does not apply to familial status
distinction, discrimination or restriction with respect to
housing for older persons.
(b) As used in this subsection, 'housing for older persons '
means housing:
(A) Provided under any state or federal program that is
specifically designed and operated to assist elderly persons, as
defined by the state or federal program;
(B) Intended for, and solely occupied by, persons 62 years of
age or older; or
(C) Intended and operated for occupancy by at least one person
55 years of age or older per unit. Housing qualifies as housing
for older persons under this subparagraph if:
(i) At least 80 percent of the dwellings are occupied by at
least one person 55 years of age or older per unit; and
(ii) Policies and procedures that demonstrate an intent by the
owner or manager to provide housing for persons 55 years of age
or older are published and adhered to.
(c) Housing does not fail to meet the requirements for housing
for older persons if:
(A) Persons residing in the housing as of September 13, 1988,
do not meet the requirements of paragraph (b)(B) or (C) of this
subsection. However, new occupants of the housing shall meet the
age requirements of paragraph (b)(B) or (C) of this subsection;
or
(B) The housing includes unoccupied units that are reserved for
occupancy by persons who meet the age requirements of paragraph
(b)(B) or (C) of this subsection.
(d) Nothing in this section limits the applicability of any
reasonable local, state or federal restrictions regarding the
maximum number of occupants permitted to occupy a dwelling.
(8) The provisions of subsection (2)(a) to (d) and (f) of this
section that prohibit actions based upon sex, sexual orientation
or familial status do not apply to the renting of space within a
single-family residence if the owner actually maintains and
occupies the residence as the owner's primary residence and all
occupants share some common space within the residence.
(9) Any violation of this section is an unlawful practice.
SECTION 17. ORS 659A.805, as amended by section 10, chapter
100, Oregon Laws 2007, and section 5a, chapter 903, Oregon Laws
2007, is amended to read:
659A.805. (1) In accordance with any applicable provision of
ORS chapter 183, the Commissioner of the Bureau of Labor and
Industries may adopt reasonable rules:
(a) Establishing what acts and communications constitute a
notice, sign or advertisement that public accommodation or real
property will be refused, withheld from, or denied to any person
or that the person will be unlawfully discriminated against
because of race, color, religion, sex, sexual orientation,
national origin, { + height, weight, + } marital status,
disability or:
(A) With respect to public accommodation, age.
(B) With respect to real property transactions, familial status
or source of income.
(b) Establishing what inquiries in connection with employment
and prospective employment express a limitation, specification or
unlawful discrimination as to race, color, religion, sex, sexual
orientation, national origin, { + height, weight, + } marital
status, age or disability.
(c) Establishing what inquiries in connection with employment
and prospective employment soliciting information as to race,
color, religion, sex, sexual orientation, national origin,
{ + height, weight, + } marital status, age or disability are
based on bona fide occupational qualifications.
(d) For internal operation and practice and procedure before
the commissioner under this chapter.
(e) Covering any other matter required to carry out the
purposes of this chapter.
(2) In adopting rules under this section the commissioner shall
consider the following factors, among others:
(a) The relevance of information requested to job performance
in connection with which it is requested.
(b) Available reasonable alternative ways of obtaining
requested information without soliciting responses as to race,
color, religion, sex, sexual orientation, national origin,
{ + height, weight, + } marital status, age, disability, source
of income or, with respect to real property transactions,
familial status.
(c) Whether a statement or inquiry soliciting information as to
race, color, religion, sex, sexual orientation, national origin,
{ + height, weight, + } marital status, age, disability, source
of income or, with respect to real property transactions,
familial status, communicates an idea independent of an intention
to limit, specify or unlawfully discriminate as to race, color,
religion, sex, sexual orientation, national origin, { + height,
weight, + } marital status, age, disability, source of income or,
with respect to real property transactions, familial status.
(d) Whether the independent idea communicated is relevant to a
legitimate objective of the kind of transaction that it
contemplates.
(e) The ease with which the independent idea relating to a
legitimate objective of the kind of transaction contemplated
could be communicated without connoting an intention to
unlawfully discriminate as to race, color, religion, sex, sexual
orientation, national origin, { + height, weight, + } marital
status, age, disability, source of income or, with respect to
real property transactions, familial status.
SECTION 18. ORS 659A.815, as amended by section 11, chapter
100, Oregon Laws 2007, is amended to read:
659A.815. (1) The Commissioner of the Bureau of Labor and
Industries shall create such advisory agencies and
intergroup-relations councils as the commissioner believes
necessary to aid in effectuating the purposes of this chapter.
The commissioner may empower advisory agencies and councils:
(a) To study the problems of discrimination in all or specific
fields of human relationships or in specific instances of
discrimination because of race, color, religion, sex, sexual
orientation, national origin, { + height, weight, + } marital
status, age, disability, familial status or source of income.
(b) To foster, through community effort or otherwise, goodwill,
cooperation and conciliation among the groups and elements of the
population of the state.
(c) To make recommendations to the commissioner for the
development of policies and procedures in general and in specific
instances, and for programs of formal and informal education.
(2) The advisory agencies and councils shall be composed of
representative citizens, serving without pay, but with
reimbursement for actual and necessary expenses in accordance
with laws and regulations governing state officers.
(3) The commissioner may make provision for technical and
clerical assistance to the advisory agencies and councils and for
the expenses of the assistance.
SECTION 19. ORS 659A.885, as amended by section 12, chapter
100, Oregon Laws 2007, section 8, chapter 180, Oregon Laws 2007,
section 3, chapter 278, Oregon Laws 2007, section 1, chapter 280,
Oregon Laws 2007, section 4, chapter 525, Oregon Laws 2007,
section 13, chapter 903, Oregon Laws 2007, and section 16,
chapter 36, Oregon Laws 2008, is amended to read:
659A.885. (1) Any person claiming to be aggrieved by an
unlawful practice specified in subsection (2) of this section may
file a civil action in circuit court. In any action under this
subsection, the court may order injunctive relief and any other
equitable relief that may be appropriate, including but not
limited to reinstatement or the hiring of employees with or
without back pay. A court may order back pay in an action under
this subsection only for the two-year period immediately
preceding the filing of a complaint under ORS 659A.820 with the
Commissioner of the Bureau of Labor and Industries, or if a
complaint was not filed before the action was commenced, the
two-year period immediately preceding the filing of the action.
In any action under this subsection, the court may allow the
prevailing party costs and reasonable attorney fees at trial and
on appeal. Except as provided in subsection (3) of this section:
(a) The judge shall determine the facts in an action under this
subsection; and
(b) Upon any appeal of a judgment in an action under this
subsection, the appellate court shall review the judgment
pursuant to the standard established by ORS 19.415 (3).
(2) An action may be brought under subsection (1) of this
section alleging a violation of ORS 25.337, 25.424, 171.120,
399.235, 408.230, 476.574, 652.355, 653.060, 659A.030, 659A.040,
659A.043, 659A.046, 659A.063, 659A.069, 659A.100 to 659A.145,
659A.150 to 659A.186, 659A.194, 659A.203, 659A.218, 659A.230,
659A.233, 659A.236, 659A.250 to 659A.262, 659A.277, 659A.300,
659A.306, 659A.309, 659A.315, 659A.318 or 659A.421.
(3) In any action under subsection (1) of this section alleging
a violation of ORS 25.337, 25.424, 659A.030, 659A.040, 659A.043,
659A.046, 659A.069, 659A.100 to 659A.145, 659A.230, 659A.250 to
659A.262, 659A.318 or 659A.421:
(a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory damages or
$200, whichever is greater, and punitive damages;
(b) At the request of any party, the action shall be tried to a
jury;
(c) Upon appeal of any judgment finding a violation, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1); and
(d) Any attorney fee agreement shall be subject to approval by
the court.
(4) In any action under subsection (1) of this section alleging
a violation of ORS 652.355 or 653.060, the court may award, in
addition to the relief authorized under subsection (1) of this
section, compensatory damages or $200, whichever is greater.
(5) In any action under subsection (1) of this section alleging
a violation of ORS 171.120, 476.574, 659A.203 or 659A.218, the
court may award, in addition to the relief authorized under
subsection (1) of this section, compensatory damages or $250,
whichever is greater.
(6) Any individual against whom any distinction, discrimination
or restriction on account of race, color, religion, sex, sexual
orientation, national origin, { + height, weight, + } marital
status or age, if the individual is 18 years of age or older, has
been made by any place of public accommodation, as defined in ORS
659A.400, by any employee or person acting on behalf of the place
or by any person aiding or abetting the place or person in
violation of ORS 659A.406 may bring an action against the
operator or manager of the place, the employee or person acting
on behalf of the place or the aider or abettor of the place or
person. Notwithstanding subsection (1) of this section, in an
action under this subsection:
(a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory and punitive
damages;
(b) The operator or manager of the place of public
accommodation, the employee or person acting on behalf of the
place, and any aider or abettor shall be jointly and severally
liable for all damages awarded in the action;
(c) At the request of any party, the action shall be tried to a
jury;
(d) The court shall award reasonable attorney fees to a
prevailing plaintiff;
(e) The court may award reasonable attorney fees and expert
witness fees incurred by a defendant who prevails only if the
court determines that the plaintiff had no objectively reasonable
basis for asserting a claim or no reasonable basis for appealing
an adverse decision of a trial court; and
(f) Upon any appeal of a judgment under this subsection, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1).
(7) When the commissioner or the Attorney General has
reasonable cause to believe that a person or group of persons is
engaged in a pattern or practice of resistance to the rights
protected by ORS 659A.145 or 659A.421 or federal housing law, or
that a group of persons has been denied any of the rights
protected by ORS 659A.145 or 659A.421 or federal housing law, the
commissioner or the Attorney General may file a civil action on
behalf of the aggrieved persons in the same manner as a person or
group of persons may file a civil action under this section. In a
civil action filed under this subsection, the court may assess
against the respondent, in addition to the relief authorized
under subsections (1) and (3) of this section, a civil penalty:
(a) In an amount not exceeding $50,000 for a first violation;
and
(b) In an amount not exceeding $100,000 for any subsequent
violation.
(8) In any action under subsection (1) of this section alleging
a violation of ORS 659A.145 or 659A.421 or alleging
discrimination under federal housing law, when the commissioner
is pursuing the action on behalf of an aggrieved complainant, the
court shall award reasonable attorney fees to the commissioner if
the commissioner prevails in the action. The court may award
reasonable attorney fees and expert witness fees incurred by a
defendant that prevails in the action if the court determines
that the commissioner had no objectively reasonable basis for
asserting the claim or for appealing an adverse decision of the
trial court.
(9) In an action under subsection (1) or (7) of this section
alleging a violation of ORS 659A.145 or 659A.421 or
discrimination under federal housing law:
(a) 'Aggrieved person' includes a person who believes that the
person:
(A) Has been injured by an unlawful practice or discriminatory
housing practice; or
(B) Will be injured by an unlawful practice or discriminatory
housing practice that is about to occur.
(b) An aggrieved person in regard to issues to be determined in
an action may intervene as of right in the action. The Attorney
General may intervene in the action if the Attorney General
certifies that the case is of general public importance. The
court may allow an intervenor prevailing party costs and
reasonable attorney fees at trial and on appeal.
SECTION 20. Section 2, chapter 36, Oregon Laws 2008, is amended
to read: { +
Sec. 2. + }(1) As used in this section:
(a) 'Facially neutral housing policy' means a guideline,
practice, rule or screening or admission criterion, regarding a
real property transaction, that applies equally to all persons.
(b) 'Protected class' means a group of persons distinguished by
race, color, religion, sex, sexual orientation, national origin,
{ + height, weight, + } marital status, familial status, source
of income or disability.
(c) 'Real property transaction' means an act described in ORS
659A.145 or 659A.421 involving the renting or leasing of
residential real property subject to ORS chapter 90.
(2) A court or the Commissioner of the Bureau of Labor and
Industries may find a person to have violated ORS 659A.145 or
659A.421 if:
(a) The person applies a facially neutral housing policy to a
member of a protected class in a real property transaction
involving a residential tenancy subject to ORS chapter 90; and
(b) Application of the policy adversely impacts members of the
protected class to a greater extent than the policy impacts
persons generally.
(3) In determining under subsection (2) of this section whether
a violation has occurred and, if a violation has occurred, what
relief should be granted, a court or the commissioner shall
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.
SECTION 21. { + The amendments to ORS 10.030, 20.107, 179.750,
240.306, 336.067, 338.125, 418.648, 443.739, 659.850, 659A.003,
659A.006, 659A.030, 659A.403, 659A.406, 659A.409, 659A.421,
659A.805, 659A.815 and 659A.885 and section 2, chapter 36, Oregon
Laws 2008, by sections 1 to 20 of this 2009 Act apply to conduct
occurring on or after the effective date of this 2009 Act. + }
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