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 2223
Senate Bill 874
Sponsored by Senator BONAMICI; Senator PROZANSKI
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.
Updates and clarifies discrimination laws related to
individuals who have disabilities.
A BILL FOR AN ACT
Relating to individuals with disabilities; creating new
provisions; and amending ORS 659A.100, 659A.103, 659A.109,
659A.112, 659A.115, 659A.118, 659A.124, 659A.130, 659A.133,
659A.136, 659A.139, 659A.142 and 659A.145.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2009 Act is added to and made
a part of ORS 659A.100 to 659A.145. + }
SECTION 2. { + (1) An individual has a disability for the
purposes of ORS 659A.100 to 659A.145 if the individual meets any
one of the following criteria:
(a) The individual has a physical or mental impairment that
substantially limits one or more major life activities of the
individual.
(b) The individual has a record of having a physical or mental
impairment that substantially limits one or more major life
activities of the individual. For the purposes of this paragraph,
an individual has a record of having a physical or mental
impairment if the individual has a history of, or has been
misclassified as having, a physical or mental impairment that
substantially limits one or more major life activities of the
individual.
(c) The individual is regarded as having a physical or mental
impairment that substantially limits one or more major life
activities of the individual. For the purposes of this paragraph:
(A) An individual is regarded as having a physical or mental
impairment if the individual has been subjected to an action
prohibited under ORS 659A.112 to 659A.139 because of an actual or
perceived physical or mental impairment, whether or not the
impairment limits or is perceived to limit a major life activity
of the individual.
(B) An individual is not regarded as having a physical or
mental impairment if the individual has an impairment that is
minor and that has an actual or expected duration of six months
or less.
(2) Activities and functions that are considered major life
activities for the purpose of determining if an individual has a
disability include:
(a) Caring for oneself;
(b) Performing manual tasks;
(c) Seeing;
(d) Hearing;
(e) Eating;
(f) Sleeping;
(g) Walking;
(h) Standing;
(i) Lifting;
(j) Bending;
(k) Speaking;
(L) Breathing;
(m) Learning;
(n) Reading;
(o) Concentrating;
(p) Thinking;
(q) Communicating;
(r) Working;
(s) Operation of a major bodily function, including:
(A) Functions of the immune system;
(B) Normal cell growth; and
(C) Digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine and reproductive functions;
and
(t) Ability to acquire, rent or maintain property.
(3) An individual is substantially limited in a major life
activity if the individual has an impairment, had an impairment
or is perceived as having an impairment that materially restricts
one or more major life activities of the individual. An
impairment that substantially limits one major life activity of
the individual need not limit other major life activities of the
individual. An impairment that is episodic or in remission is
considered to substantially limit a major life activity of the
individual if the impairment would substantially limit a major
life activity of the individual when the impairment is active.
(4) When determining whether an impairment substantially limits
a major life activity of an individual, the determination shall
be made without regard to the ameliorative effects of mitigating
measures, including:
(a) Medication;
(b) Medical supplies, equipment or appliances;
(c) Low vision devices or other devices that magnify, enhance
or otherwise augment a visual image, except that ordinary
eyeglasses or contact lenses or other similar lenses that are
intended to fully correct visual acuity or eliminate refractive
error may be considered when determining whether an impairment
substantially limits a major life activity of an individual;
(d) Prosthetics, including limbs and devices;
(e) Hearing aids, cochlear implants or other implantable
hearing devices;
(f) Mobility devices;
(g) Oxygen therapy equipment or supplies;
(h) Assistive technology;
(i) Reasonable accommodations or auxiliary aids or services; or
(j) Learned behavioral or adaptive neurological modifications.
(5) Nothing in subsection (4)(c) of this section authorizes an
employer to use qualification standards, employment tests or
other selection criteria based on an individual's uncorrected
vision unless the standard, test or other selection criteria, as
used by the employer, are shown to be job-related for the
position in question and is consistent with business
necessity. + }
SECTION 3. ORS 659A.100 is amended to read:
659A.100. { - (1) - } As used in { + this section and + }
{ - ORS 659A.100 to 659A.145, unless the context requires
otherwise - } { + ORS 659A.124, 659A.127 and 659A.130 + }:
{ - (a) - } { + (1) + } 'Drug' means a controlled
substance, as classified in schedules I through V of section 202
of the { + federal + } Controlled Substances Act, { - 21
U.S.C.A. 812, - } as amended, and as modified under ORS 475.035.
{ - (b) - } { + (2) + } 'Illegal use of drugs' means any
use of drugs, the possession or distribution of which is unlawful
under state law or under the { + federal + } Controlled
Substances Act, { - 21 U.S.C.A. 812, - } as amended, but does
not include the use of a drug taken under supervision of a
licensed health care professional, or other uses authorized under
the Controlled Substances Act or under other provisions of state
or federal law.
{ - (c) 'Person with a disability' means an individual who
has a physical or mental impairment that substantially limits one
or more major life activities, has a record of such an impairment
or is regarded as having such an impairment. - }
{ - (d) 'State government' has the meaning given that term in
ORS 174.111. - }
{ - (2) As used in subsection (1) of this section: - }
{ - (a) 'Major life activity' includes but is not limited to
self-care, ambulation, communication, transportation, education,
socialization, employment and ability to acquire, rent or
maintain property. - }
{ - (b) 'Has a record of such an impairment' means that the
individual has a history of, or has been misclassified as having,
a mental or physical impairment that substantially limits one or
more major life activities. - }
{ - (c) 'Is regarded as having such an impairment' means that
the individual: - }
{ - (A) Has a physical or mental impairment that does not
substantially limit major life activities but is treated by an
employer or supervisor as having such a limitation; - }
{ - (B) Has a physical or mental impairment that
substantially limits major life activities only as a result of
the attitude of others toward such impairment; or - }
{ - (C) Has none of the impairments described in subparagraph
(A) or (B) of this paragraph, but is treated by an employer or
supervisor as having a mental or physical impairment that
substantially limits one or more major life activities. - }
{ - (d) 'Substantially limits' means: - }
{ - (A) The impairment renders the individual unable to
perform a major life activity that the average person in the
general population can perform; or - }
{ - (B) The impairment significantly restricts the condition,
manner or duration under which an individual can perform a
particular major life activity as compared to the condition,
manner or duration under which the average person in the general
population can perform the same major life activity. - }
SECTION 4. ORS 659A.103 is amended to read:
659A.103. (1) It is declared to be the public policy of Oregon
to guarantee { - persons with disabilities - }
{ + individuals + } the fullest possible participation in the
social and economic life of the state, to engage in remunerative
employment, to use and enjoy places of public accommodation,
resort or amusement, to participate in and receive the benefits
of the services, programs and activities of state government and
to secure housing accommodations of their choice, without
discrimination { + on the basis of disability + }.
(2) { - The right to otherwise lawful employment without
discrimination because of disability where the reasonable demands
of the position do not require such a distinction, and the right
to use and enjoy places of public accommodation, resort or
amusement, to participate in and receive the benefits of the
services, programs and activities of state government and to
purchase or rent property without discrimination because of
disability, are hereby recognized and declared to be the rights
of all the people of this state. It is - } { + The guarantees
expressed in subsection (1) of this section are + } hereby
declared to be the policy of the State of Oregon to
protect { + , + } { - these rights - } and ORS 659A.100 to
659A.145 shall be construed to effectuate such policy.
SECTION 5. ORS 659A.109 is amended to read:
659A.109. It is an unlawful employment practice for an employer
to discriminate against { - a worker - } { + an
individual + } with respect to hire or tenure or any term or
condition of employment because the { - worker has applied for
benefits or invoked or utilized the procedures provided for
in - } { + individual has invoked + } ORS 659A.100 to 659A.145
or has given testimony under the provisions of { - such
sections - } { + ORS 659A.100 to 659A.145 + }.
SECTION 6. ORS 659A.112 is amended to read:
659A.112. (1) It is an unlawful employment practice for any
employer to refuse to hire, employ or promote, to bar or
discharge from employment or to discriminate in compensation or
in terms, conditions or privileges of employment { - because an
otherwise qualified person is a person with a disability - }
{ + on the basis of disability + }.
(2) An employer violates subsection (1) of this section if the
employer does any of the following:
(a) The employer limits, segregates or classifies a job
applicant or employee in a way that adversely affects the
opportunities or status of the applicant or employee because the
applicant or employee { - is a person with - } { + has + } a
disability.
(b) The employer participates in a contractual or other
arrangement or relationship that has the effect of subjecting
{ - an otherwise - } { + a + } qualified job applicant or
employee { - who is a person - } with a disability to the
discrimination prohibited by ORS 659A.112 to 659A.139, including
but not limited to participating in a relationship with an
employment or referral agency, a labor union, an organization
providing fringe benefits to an employee of the employer, or an
organization providing training and apprenticeship programs.
(c) The employer utilizes standards, criteria or methods of
administration that have the effect of discrimination on the
basis of disability, or that perpetuate the discrimination of
others who are subject to common administrative control.
(d) The employer excludes or otherwise denies equal jobs or
benefits to { - an otherwise qualified person - } { + a
qualified individual + } because the { - person - }
{ + individual + } is known to have a relationship or
association with { - a person - } { + an individual + } with
a disability.
(e) The employer does not make reasonable accommodation to the
known physical or mental limitations of { - an otherwise
qualified person - } { + a qualified individual + } with a
disability who is a job applicant or employee, unless the
employer can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of the employer.
(f) The employer denies employment opportunities to a job
applicant or employee who is { - an otherwise qualified
person - } { + a qualified individual + } with a disability, if
the denial is based on the need of the employer to make
reasonable accommodation to the physical or mental impairments of
the employee or applicant.
(g) The employer uses qualification standards, employment tests
or other selection criteria { + , including those based on an
individual's uncorrected vision or unaided hearing, + } that
screen out or tend to screen out { - a person - } { + an
individual + } with a disability or a class of { - persons - }
{ + individuals + } with disabilities unless the standard, test
or other selection criterion, as used by the employer, is shown
to be job-related for the position in question and is consistent
with business necessity.
(h) The employer fails to select and administer tests relating
to employment in the most effective manner to ensure that when
the test is administered to a job applicant or employee who has a
disability that impairs sensory, manual or speaking skills, the
test results accurately reflect the skills, aptitude or other
characteristics of the applicant or employee that the test
purports to measure, rather than reflecting the impaired sensory,
manual or speaking skills of the employee or applicant. The
provisions of this paragraph do not limit the ability of an
employer to select or administer tests designed to measure
sensory, manual or speaking skills of an employee or job
applicant.
SECTION 7. ORS 659A.115 is amended to read:
659A.115. For the purposes of ORS 659A.112, { - a person with
a disability is otherwise - } { + an individual is + }
qualified for a position if the { - person - } { +
individual + }, with or without reasonable accommodation, can
perform the essential functions of the position. For the purpose
of determining the essential functions of the position, due
consideration shall be given to the employer's determination as
to the essential functions of a position. If an employer has
prepared a written description before advertising or interviewing
applicants for a job, the position description shall be
considered evidence of the essential functions of the job.
SECTION 8. ORS 659A.118 is amended to read:
659A.118. (1) For the purposes of ORS 659A.112, reasonable
accommodation { - of an otherwise qualified person with a
disability - } may include:
(a) Making existing facilities used by employees readily
accessible to and usable by { - persons - }
{ + individuals + } with disabilities.
(b) Job restructuring, part-time or modified work schedules or
reassignment to a vacant position.
(c) Acquisition or modification of equipment or devices.
(d) Appropriate adjustment or modification of examinations,
training materials or policies.
(e) The provision of qualified readers or interpreters.
(2) Notwithstanding any other provision of ORS 659A.100 to
659A.145, an employer may not be found to have engaged in an
unlawful employment practice solely because the employer fails to
provide reasonable accommodation to { - a person - } { + an
individual + } with a disability arising out of transsexualism.
{ + (3) An employer is not required to provide a reasonable
accommodation to an individual who satisfies the criteria for
being an individual with a disability for the purposes of ORS
659A.100 to 659A.145 solely because the individual meets the
criterion described in section 2 (1)(c) of this 2009 Act. + }
SECTION 9. ORS 659A.124 is amended to read:
659A.124. (1) Subject to the provisions of subsection (2) of
this section, the protections of ORS 659A.112 do not apply to any
job applicant or employee who is currently engaging in the
illegal use of drugs if the employer takes action based on that
conduct.
(2) The protections of ORS 659A.112 apply to the following
{ - persons - } { + individuals + }:
(a) { - A person - } { + An individual + } who has
successfully completed a supervised drug rehabilitation program
and is no longer engaging in the illegal use of drugs or has
otherwise been rehabilitated successfully and is no longer
engaging in the illegal use of drugs.
(b) { - A person - } { + An individual + } who is
participating in a supervised rehabilitation program and is no
longer engaging in the illegal use of drugs.
(c) { - A person - } { + An individual + } who is
erroneously regarded as engaging in the illegal use of drugs.
(3) An employer may adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed
to ensure that { - a person - } { + an individual + }
described in subsection (2)(a) or (b) of this section is no
longer engaging in the illegal use of drugs.
SECTION 10. ORS 659A.130 is amended to read:
659A.130. (1) For the purposes of ORS 659A.112 to 659A.139,
homosexuality and bisexuality are not physical or mental
impairments. { - A person - } { + An individual + } who is
homosexual or bisexual { - is not a person with - } { + does
not have + } a disability for the purposes of ORS 659A.112 to
659A.139 solely by reason of being homosexual or bisexual.
(2) For the purposes of ORS 659A.112 to 659A.139, the following
conditions are not physical or mental impairments, and
{ - a person - } { + an individual + } with one or more of
the following conditions { - is not a person with - }
{ + does not have + } a disability for the purposes of ORS
659A.112 to 659A.139 solely by reason of that condition:
(a) Transvestism, pedophilia, exhibitionism, voyeurism or other
sexual behavior disorders.
(b) Compulsive gambling, kleptomania or pyromania.
(c) Psychoactive substance use disorders resulting from current
illegal use of drugs.
SECTION 11. ORS 659A.133 is amended to read:
659A.133. (1) Except as provided in this section, an employer
violates ORS 659A.112 if the employer conducts a medical
examination of a job applicant, makes inquiries of a job
applicant as to whether the applicant { - is a person with - }
{ + has + } a disability or makes inquiries as to the nature or
severity of any disability of the applicant.
(2) An employer may make inquiries into the ability of a job
applicant to perform job-related functions.
(3) An employer may require a medical examination after an
offer of employment has been made to a job applicant and before
the commencement of the employment duties of the applicant, and
condition the employment on the results of the examination, if
the following conditions are met:
(a) All { - persons - } { + individuals + } entering the
employ of the employer must be subject to the examination
regardless of disability.
(b) Information obtained regarding the medical condition or
history of the applicant is collected and maintained on separate
forms and in separate medical files and is treated as a
confidential medical record, except as follows:
(A) Supervisors and managers may be informed regarding
necessary restrictions on the work or duties of the employee and
necessary accommodations.
(B) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment.
(C) Officers and employees of the Bureau of Labor and
Industries investigating compliance with ORS 659A.112 to 659A.139
shall be provided relevant information on request.
(c) The results of an examination authorized under this
subsection may only be used in the manner provided for in ORS
659A.112 to 659A.139.
SECTION 12. ORS 659A.136 is amended to read:
659A.136. (1) Except as provided in this section, an employer
may not require that an employee submit to a medical examination,
may not make inquiries of an employee as to whether the employee
{ - is a person with - } { + has + } a disability, and may
not make inquiries of an employee as to the nature or severity of
any disability of the employee, unless the examination or inquiry
is shown to be job-related and consistent with business
necessity.
(2) An employer may conduct voluntary medical examinations,
including voluntary medical histories, that are part of an
employee health program available to employees at that work site.
An employer may make inquiries into the ability of an employee to
perform job-related functions.
(3) Information obtained under subsection (2) of this section
relating to the medical condition or history of any employee is
subject to the same restrictions applicable to information
acquired from medical examinations authorized under ORS 659A.133.
SECTION 13. ORS 659A.139 is amended to read:
659A.139. { + (1) + } { - ORS 659A.112 to 659A.139 - }
{ + ORS 659A.100 to 659A.145 + } shall be construed to the
extent possible in a manner that is consistent with any similar
provisions of the federal Americans with Disabilities Act of
1990, as amended { + by the federal ADA Amendments Act of 2008
and as otherwise amended + }.
{ + (2) The determination of whether an individual has a
disability as provided in section 2 (1) of this 2009 Act shall be
construed in favor of broad coverage of individuals under ORS
659A.100 to 659A.145, to the maximum extent permitted by the
terms of ORS 659A.100 to 659A.145. + }
SECTION 14. ORS 659A.142 is amended to read:
659A.142. (1) It is an unlawful employment practice for an
employment agency to fail or refuse to refer for employment, or
otherwise discriminate against, any individual because that
individual { - is a person with - } { + has + } a disability,
or to classify or refer for employment any individual because
that individual { - is a person with - } { + has + } a
disability.
(2) It is an unlawful employment practice for a labor
organization, because an individual { - is a person with - }
{ + has + } a disability, to exclude or to expel from its
membership such individual or to discriminate in any way against
such individual.
(3) It is an unlawful practice for any place of public
accommodation, resort or amusement as defined in ORS 659A.400, or
any person acting on behalf of such place, to make any
distinction, discrimination or restriction because a customer or
patron is { - a person - } { + an individual + } with a
disability.
(4)(a) It is an unlawful practice for state government to
exclude an individual from participation in or deny an individual
the benefits of the services, programs or activities of state
government or to make any distinction, discrimination or
restriction because the individual { - is a person with - }
{ + has + } a disability.
(b) Paragraph (a) of this subsection is intended to ensure
equal access to available services, programs and activities of
state government.
(c) Paragraph (a) of this subsection is not intended to:
(A) Create an independent entitlement to any service, program
or activity of state government; or
(B) Require state government to take any action that state
government can demonstrate would result in a fundamental
alteration in the nature of a service, program or activity of
state government or would result in undue financial or
administrative burdens on state government.
(5) Receipt or alleged receipt of treatment for a mental
disorder does not constitute evidence of an individual's
inability to acquire, rent or maintain property.
SECTION 15. ORS 659A.145, as amended by section 5, chapter 36,
Oregon Laws 2008, is amended to read:
659A.145. (1) As used in this section:
(a) 'Discrimination' includes:
(A) A refusal to permit, at the expense of { - the person
with - } { + an individual with + } a disability, reasonable
modifications of existing premises occupied or to be occupied by
the { - person - } { + individual + } if:
(i) The modifications may be necessary to afford the
{ - person - } { + individual + } full enjoyment of the
premises; and
(ii) In the case of a rental, when it is reasonable to do so,
the renter agrees to restore the interior of the premises to the
condition that existed before the modification, reasonable wear
and tear excepted;
(B) A refusal to make reasonable accommodations in rules,
policies, practices or services when the accommodations may be
necessary to afford { - the person with - } { + an individual
with + } a disability equal opportunity to use and enjoy a
dwelling; and
(C) Failure to design and construct a covered multifamily
dwelling as required by the Fair Housing Act (42 U.S.C. 3601 et
seq.).
(b) 'Dwelling' has the meaning given that term in ORS 659A.421.
(c) 'Purchaser' has the meaning given that term in ORS
659A.421.
(2) A person may not discriminate because of a disability of a
purchaser, a disability of { - a person - } { + an
individual + } residing in or intending to reside in a dwelling
after it is sold, rented or made available or a disability of any
{ - person - } { + individual + } associated with a purchaser
by:
(a) Refusing to sell, lease, rent or otherwise make available
any real property to a purchaser;
(b) Expelling a purchaser;
(c) Making any distinction or restriction against a purchaser
in the price, terms, conditions or privileges relating to the
sale, rental, lease or occupancy of real property or the
furnishing of any facilities or services in connection therewith;
(d) Attempting to discourage the sale, rental or lease of any
real property; or
(e) Representing that a dwelling is not available for
inspection, sale, rental or lease when the dwelling is in fact
available for inspection, sale, rental or lease.
(3) A person may not 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
discrimination against { - a person with a - } { + an
individual on the basis of + } disability.
(4) A person whose business includes engaging in residential
real estate related transactions, as defined in ORS 659A.421 (3),
may not discriminate against any { - person - }
{ + individual + } in making a transaction available, or in the
terms or conditions of the transaction, because of a disability.
(5) A real estate broker or principal real estate broker may
not accept or retain a listing of real property for sale, lease
or rental with an understanding that the purchaser, lessee or
renter may be discriminated against solely because { - a person
is a person with - } { + an individual has + } a disability.
(6) A person may not 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 - } { + individual + } in
the terms or conditions of the access, membership or
participation, because that { - person is a person with - }
{ + individual has + } a disability.
(7) A person may not assist, induce, incite or coerce another
person to commit an act or engage in a practice that violates
this section.
(8) A person may not coerce, intimidate, threaten or interfere
with any { - person - } { + individual + } in the exercise or
enjoyment of, or on account of having exercised or enjoyed, or on
account of having aided or encouraged any other { - person - }
{ + individual + } in the exercise or enjoyment of, any right
granted or protected by this section.
(9) 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 with - } { + an individual who has + } a
disability.
(10) In the sale, lease or rental of real property, a person
may not disclose to any person that an occupant or owner of the
real property has or died from human immunodeficiency virus or
acquired immune deficiency syndrome.
(11) Any violation of this section is an unlawful practice.
SECTION 16. { + Section 2 of this 2009 Act and the amendments
to ORS 659A.100, 659A.103, 659A.109, 659A.112, 659A.115,
659A.118, 659A.124, 659A.130, 659A.133, 659A.136, 659A.139,
659A.142 and 659A.145 by sections 3 to 15 of this 2009 Act apply
only to conduct occurring on or after the effective date of this
2009 Act. + }
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