Discrimination and Retaliation
It is also unlawful to treat someone different because they are associated with a person who has any of the above characteristics. This is called associational discrimination.
Retaliation is distinct from discrimination and is any adverse action against someone who has complained that they, or someone else, is being treated unfairly under the law. For example, when an employee is subjected to a hostile work environment, a common and often appropriate response is to report the harassment up the chain of command. Any adverse action that the employee suffers for making such a report can give rise to a retaliation claim that is independent to the underlying discrimination claim.
Many discrimination lawsuits have a retaliation element to them. It is not uncommon for the retaliation portion of a lawsuit to be stronger than the discrimination portion of a claim, since the standards for proving retaliation are generally lower than proving discrimination.
Sexual harassment is a form of sex or gender discrimination where unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature is made a condition of employment. This conduct is unlawful if it interferes with an individual’s work performance and creates an intimidating, hostile or offensive work environment. Sexual Harassment is a form of gender or sex discrimination because unlawful conduct relates to a person’s sex or gender, or because of things the harasser associates with a person’s sex or gender.
There are two types of sexual harassment. In some cases, these two types can overlap Quid pro quo sexual harassment occurs when an employer or supervisor demands sexual favors in exchange for raises, promotions, or other perks, or threatens an employee for failure to provide sexual favors.
Hostile work environment sexual harassment occurs when the working environment is made hostile because of its sexual nature, such as photos, comments, jokes, or other acts of an offensive sexual nature, including physical touching which make the workplace intolerable. The harassment must be severe or pervasive to constitute a hostile work environment. Generally, the more severe the harassment is, the less pervasive it need be, and vice versa.
Employees who blow the whistle on their employer’s violations of state or federal law, regulations or rules are usually protected by law.
While federal laws protect whistleblowers who report fraud or false claims against the government, Oregon law has much broader whistleblower protections. For example, under Oregon law it is unlawful for an employer to discriminate or retaliate against an employee for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.
Wrongful Discharge / Wrongful Termination
Wrongful Discharge / Wrongful Termination claims arise when one is actually terminated or, alternately, constructively terminated for fulfilling societal duties or exercising rights of public importance related to their role as employees.
Constructive discharge means that one is not actually terminated, but chooses to quit because of extreme and unacceptable working conditions.
A wrongful constructive discharge can arise in two circumstances. First, a constructive discharge may exist when an employee’s quits their employment when told to “resign or be fired.” Thesecond category is where one quits because of unacceptable working conditions. Under this latter circumstance, one must show that no reasonable employee would continue working in the work environment and that the unacceptable work environment was created by the employer with the purpose of forcing the employee to quit.
Housing Discrimination / Fair Housing
The Fair Housing Act, as amended in 1988, prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. The Oregon Fair Housing Act also prohibits discrimination based on marital status, source of income, sexual orientation, gender identity, military status, one’s status as a victim of domestic violence and source of income, including Section 8 vouchers.
The Fair Housing Act covers private housing, housing that receives Federal financial assistance, and State and local government housing. A common area of misundersanding of the Fair Housing Act relateds to its disability discrimination coverage. It is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, of an individual associated with the buyer or renter, or of an individual who intends to live in the residence. Other covered activities includes discriminatory financing, zoning practices, construction, design, and advertising.
The Fair Housing Act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities. For example, a landlord with a “no pets” policy may be required to grant an exception to this rule and allow an individual to keep a service animal or emotional support animal in the residence, The Fair Housing Act also requires landlords to allow tenants with disabilities to make reasonable access-related modifications to their private living space, as well as to common use spaces. (The landlord is not required to pay for the changes if the unit is otherwise accessible.) The Act further requires that new multifamily housing with four or more units be designed and built to allow access for persons with disabilities. This includes accessible common use areas, doors that are wide enough for wheelchairs, kitchens and bathrooms that allow a person using a wheelchair to maneuver, and other adaptable features within the units.
Medical Leave laws (OFLA/FMLA)
State and federal law both require certain employers to provide up to 12 weeks of unpaid leave a year to employees for a serious health condition of the employee or family member or for the birth or adoption of a child. In general, OFLA and FMLA provide 12 weeks of unpaid leave per year for the following purposes:
- “Parental leave” for the birth or adoption of a child
- “Serious health condition leave” to care for the employee’s own serious health condition or the serious health condition of a family member
- “Pregnancy leave” for a pregnancy related health conditions or prenatal care
OFLA and FMLA are similar and overlap in many respects, but there are significant differences in coverage and in application. In fact, in a given year, depending on the purpose for which leave is taken, an employee may be entitled to over 12 weeks of leave depending on which laws apply.
In some situations, OFLA and FMLA may with the Americans with Disabilities Act (ADA) and with Oregon’s disability and workers’ compensation laws. As a result, for example, just because one exhausts their medical leave for the year doesn’t impact whether more leave, or a different kind of leave, is required to provided to the employee under the ADA.
Both OFLA and FMLA contain job protection provisions and anti-retaliation provisions. If you have a question about OFLA or FMLA leave or coverage, please contact the Law Office of Matthew C. Ellis for a consultation.
Section 1983 Litigation
Section 1983 claims are complex and the process of successfully litigating such claims through the trial and appellate process can take years. That said, Section 1983 litigation for public employees is especially close to Matthew’s heart, and Matthew has litigated state and federal constitutional issues in state and federal court, as well as before the Ninth Circuit Court of Appeals.
Under 42 U.S.C. § 1983, public employees are afforded additional legal protections when a public employer violates an employee’s constitutional rights. Matthew represents employees who have been deprived of their substantive or procedural due process rights, equal protection under the law or who have suffered retaliation as a result of their exercise of free speech. Matthew has presented on First Amendment retaliation claims to local civil rights attorneys.