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 3328
Senate Bill 727
Sponsored by Senator BURDICK (at the request of Pam Beaty)
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.
Establishes unlawful employment practice of subjecting employee
to abusive work environment. Limits recovery of damages to
private right of action.
A BILL FOR AN ACT
Relating to abusive work environments.
Whereas the social and economic well-being of the state is
dependent upon healthy and productive employees; and
Whereas between 37 and 59 percent of employees directly
experience health-endangering workplace bullying, abuse and
harassment, and this mistreatment is approximately four times
more prevalent than sexual harassment alone; and
Whereas workplace bullying, mobbing and harassment can inflict
serious harm upon targeted employees, including feelings of shame
and humiliation, severe anxiety, depression, suicidal tendencies,
impaired immune systems, hypertension, increased risk of
cardiovascular disease and symptoms consistent with
post-traumatic stress disorder; and
Whereas abusive work environments can have serious consequences
for employers, including reduced employee productivity and
morale, higher turnover and absenteeism rates, and increases in
medical and workers' compensation claims; and
Whereas if mistreated employees who have been subjected to
abusive treatment at work cannot establish that the behavior was
motivated by race, color, sex, sexual orientation, national
origin or age, they are unlikely to be protected by the law
against such mistreatment; and
Whereas legal protection from abusive work environments should
not be limited to behavior grounded in protected class status as
provided for under employment discrimination statutes; and
Whereas existing workers' compensation plans and common law
tort actions are inadequate to discourage this behavior or to
provide adequate relief to employees who have been harmed by
abusive work environments; now, therefore,
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Purpose. It is the purpose of sections 1 to 8
of this 2009 Act to provide:
(1) Legal relief for employees who have suffered psychological,
physical, economic or other harm by being deliberately subjected
to an abusive work environment; and
(2) Legal incentive for employers to prevent and respond to
abusive treatment of employees at work. + }
SECTION 2. { + Definitions. As used in sections 1 to 8 of this
2009 Act:
(1) 'Abusive conduct' includes acts and omissions that a
reasonable person would find hostile, based on the severity,
nature and frequency of the conduct. 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 of a threatening, intimidating
or humiliating nature;
(c) Sabotage or undermining of an employee's work performance;
or
(d) Exploitation of an employee's known psychological or
physical vulnerability.
(2) 'Abusive work environment' means a work environment under
which a person, acting with malice, subjects an employee to
abusive conduct severe enough to cause tangible harm to the
employee.
(3) 'Adverse employment action' includes, but is not limited
to, a constructive discharge, termination, demotion, unfavorable
reassignment, failure to promote, disciplinary action or
reduction in compensation.
(4) 'Constructive discharge' means the termination of
employment by the resignation of the employee if:
(a) The employee reasonably believed that the employee was
subjected to abusive conduct;
(b) The employee resigned because of the abusive conduct; and
(c) Prior to resigning, the employee brought to the employer's
attention the existence of the abusive conduct and the employer
failed to take reasonable steps to correct the situation. + }
{ + (5) 'Malice' means the desire to cause pain, injury or
distress to another.
(6) 'Physical harm' means the material impairment of a person's
physical health or bodily integrity, as established by competent
evidence.
(7) 'Psychological harm' means the material impairment of a
person's mental health, as established by competent evidence.
(8) 'Tangible harm' means psychological harm or physical
harm. + }
SECTION 3. { + Unlawful employment practices. It is an
unlawful employment practice to:
(1) Subject an employee to an abusive work environment. A
single act normally will not constitute an abusive work
environment, but an especially severe and egregious act may meet
this standard.
(2) Retaliate in any manner against an employee who has:
(a) Opposed any unlawful employment practice under sections 1
to 8 of this 2009 Act; or
(b) Made an allegation, testified, assisted or participated in
any manner in an investigation or proceeding arising under
sections 1 to 8 of this 2009 Act including, but not limited to,
internal complaints and proceedings, arbitration and mediation
proceedings and legal actions. + }
SECTION 4. { + Employer liability and defense. (1) An
employer is liable for an unlawful employment practice described
in section 3 of this 2009 Act that is committed by an employee of
the employer.
(2) If the alleged unlawful employment practice did not result
in an adverse employment action, it is an affirmative defense for
an employer that:
(a) The employer exercised reasonable care to prevent and
promptly correct any actionable conduct; or
(b) The employee claiming to have been subject to an unlawful
employment practice unreasonably failed to take advantage of
appropriate preventive or corrective opportunities provided by
the employer.
(3) If the alleged unlawful employment practice resulted in an
adverse employment action, it is an affirmative defense for an
employer that the complaint is based on:
(a) An action reasonably taken for poor performance, misconduct
or economic necessity;
(b) A reasonable performance evaluation; or
(c) An employer's reasonable investigation of potentially
illegal or unethical activity. + }
SECTION 5. { + Employee liability and defense. (1) An employee
may be held individually liable for an unlawful employment
practice described in section 3 of this 2009 Act.
(2) It is an affirmative defense for an employee that the
employee committed an unlawful employment practice described in
section 3 of this 2009 Act at the direction of the employer under
threat of an adverse employment action against the employee for
refusal to do so. + }
SECTION 6. { + Relief. (1) When a person is found to have
committed an unlawful employment practice described in section 3
of this 2009 Act, the court may enjoin the defendant from
engaging in the unlawful employment practice and may order any
other relief that the court deems appropriate, including, but not
limited to, reinstatement, removal of the offending party from
the complainant's work environment, back pay, front pay, medical
expenses, compensation for emotional distress, punitive damages
and attorney fees.
(2) When an employer is found to have committed an unlawful
employment practice described in section 3 of this 2009 Act that
did not result in an adverse employment action, the employer's
liability for damages for emotional distress may not exceed
$25,000, and the employer is not subject to punitive damages.
This provision does not apply to an individually named employee
defendant. + }
SECTION 7. { + Procedures. (1) An action arising under section
3, 4 or 5 of this 2009 Act may be enforced only by a private
right of action.
(2) An action brought under section 3, 4 or 5 of this 2009 Act
must be commenced not later than one year after the date of the
last act or omission that constitutes the alleged unlawful
employment practice. + }
SECTION 8. { + Effect on other legal relationships. The
remedies provided under sections 1 to 8 of this 2009 Act are in
addition to any other remedy provided by law, and nothing in
sections 1 to 8 of this 2009 Act relieves any person from any
other liability, duty, penalty or punishment provided by law. + }
SECTION 9. { + The section captions used in this 2009 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 2009 Act. + }
----------