Oregon
Information for Employees,
and Applicants for Employment
This page provides summary information that may be useful
to employees and applicants for employment. Please note that only
basic information is provided about each topic. This information
should be supplemented with information from other sources, government
agencies, and attorneys.
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If you feel that you may have experienced unlawful employment
discrimination, the following steps may be helpful to you.
a. Gather Information - Create a file, and gather information
regarding the suspected discrimination. The information may include
the relevant laws and regulations; the employer's employment policies;
the procedures to file a compaint with a government agency, and
the employer's internal complaint procedures; personnel records;
a list of witnesses; and, a log of important events. Visit a local
law library, and book store, to review books that contain information
about non-discrimination in employment.
b. Seek Advice - Consult with persons about the employment
problem, and your legal rights. Information may be available within
the employment environment from sources including the human resources
department, the employee assistance program, employee organizations,
and higher management. Information may be available outside of
the employment environment from sources including government agencies,
employee rights organizations, and attorneys. Be aware that the
employment problem may involve other legal issues in addition
to employment discrimination.
c. Meet Statutory Time Limits - Learn the time limits that
you must meet if you decide to file an administrative complaint
with a government agency, and / or to pursue litigation. Make
notations of the deadlines on your calendars, and make additional
notations to ensure that you have sufficient lead time to meet
the deadlines. Be certain that you meet the time limits for filing
administrative and court complaints, or you may lose your right
to pursue the matter further.
d. Decide On and Follow a Course of Action - Using the information
and advice you have obtained, decide on a course of action that
you will follow to address the suspected discrimination. The appropriate
course of action will depend on the circumstances of the suspected
discriminatory situation. It may be helpful to first try to resolve
the matter within the employment environment, by bringing the
matter to the attention of someone in the human resources department,
or in higher management. If that is not successful, you may decide
to file a complaint with the employer's internal complaint or
grievance system, if one exists. Recent court decisions regarding
sexual harassment indicate that employees should usually take
advantage of an employer's internal complaint system. Consider
keeping notes on the contacts that you make orally, and making
important contacts in writing. If you conclude that your efforts
within the employment environment are not successful, you may
decide to seek outside assistance by filing a complaint with a
government agency, or retaining an attorney to represent you.
Revise your plan of action as appropriate as you learn additional
information about your case.
e. Identify the Desired Resolution - Using the information
and advice you have obtained, decide on what you desire as a remedy
for the suspected discrimination. The appropriate resolution will
depend on the circumstances of the suspected discriminatory situation.
Be prepared to explain, and justify, the resolution that you desire.
Revise the desired resolution as appropriate as you learn additional
information about the case. Be creative when thinking of possible
resolutions. Recognize that compromise may be necessary to achieve
a successful resolution.
Equal employment opportunity laws impose various time limits
that must be met. If prescribed time limits are not met, cases
may be dismissed by government agencies, and the courts. The information
presented here describes some, but not all, of the time limits.
Other employment laws impose additional time limits. To obtain
more information about time limits and complaint procedures, contact
other sources, government agencies, or attorneys.
In Oregon, which has a state fair employment practices ("FEP")
agency approved by the U.S. Equal Employment Opportunity Commission
(EEOC), complaints of employment discrimination must usually be
filed in writing with the EEOC within 300 days of the alleged
discrimination (42 USC 2000e-5(e)). If this state did not have
an approved FEP agency, a 180-day time limit may apply.
A complaint of employment discrimination usually has to be
filed with the EEOC, and a Notice of Right to Sue issued, before
litigation is commenced in court. This is not true for litigation
under the federal Equal Pay Act which may be filed directly in
court within two years of the alleged discrimination (or three
years for a "willful" violation)(29 USC 216(c), 255(a)),
and litigation under post-Civil War civil rights statutes like
42 USC Sections 1981 and 1983, which may be filed within the statute
of limitations for personal injury actions in the state where
the case is filed (two years in Oregon).
If the EEOC declines to take a complaint, a complainant may
attempt to file the complaint by submitting a signed letter to
the EEOC within the prescribed time period, stating the name and
address of the complainant and the employer, employment agency,
or labor organization; the approximate number of workers employed
by the employer; the date of the alleged discrimination; the basis
of the alleged discrimination (e.g., race, national origin, sex,
age, religion, disability, retaliation); and, a description of
the alleged discriminatory actions (42 USC 2000-e-5(b); 29 CFR
1601.9 and 1601.12). The EEOC may still dismiss the complaint,
but it should do so by issuing a Notice of Right to Sue, which
allows the complainant to file suit in Federal District Court.
If the EEOC issues a Notice of Right to Sue on a complaint,
that action usually ends the EEOC's administrative processing
of the complaint, and the complainant has 90 days to file suit
in Federal District Court (29 CFR 1601.28(e)).
Attorney referral services may be provided by government agencies,
bar associations, and other organizations. The EEOC field offices
maintain attorney referral lists that are available to the public.
If a complainant is unable to find an attorney who will file suit
within the 90-day period, (s)he may attempt to file suit in Federal
District Court, and ask the court to appoint an attorney. Some
courts may provide limited assistance to unrepresented complainants.
For example, the Office of the Clerk of the Federal District Court
for the Northern District of California will provide a package
of forms to assist a complainant to file suit without an attorney.
However, it is difficult to pursue litigation without an attorney,
and the court may be unable to appoint an attorney for every unrepresented
complainant. Also, there may be advantages for complainants to
have their cases filed in state court, instead of federal court.
For example, in Federal Court a unanimous jury verdict is required,
whereas only three-fourths of the jury have to agree in some state courts.
Different complaint-filing time limits and administrative
procedures apply to most civilian employees and applicants of
the federal government, who must first discuss their discrimination
complaints with equal employment opportunity counselors of the
employing agency within 45 days of the alleged discrimination.
The counselors should inform the employees and applicants of subsequent
time limits that they must meet.
In Oregon, complaints of employment discrimination usually
must be filed with the Oregon Bureau of Labor and Industry, Civil
Rights Division (BOLI), within one year of the alleged discrimination
(ORS 659.040). After BOLI dismisses a complaint and issues a Right
to Sue Letter, the complainant has 90 days to file suit in state
court (ORS 659.095). In Oregon, a complainant has the option of
first filing an administrative complaint with BOLI, or bypassing
BOLI and commencing state court action within one year of the
alleged discrimination (ORS 659.121).
The time limits to file discrimination complaints may be extended
in some circumstances, such as continuing violations. If the you have
questions regarding the timeliness of a discrimination complaint,
contact the EEOC or BOLI, or seek
professional advice from an employment law attorney.
You will make better decisions concerning your employment
situation, if you consider the practical realities and difficulties
in pursuing an employment discrimination case.
Some complainants may develop unrealistic expectations about
the monetary value of their cases, as a result of publicity about
other cases where large amounts of money were awarded. What they
may not consider adequately is that for each case where a large
amount of money was won, there were more cases where small amounts
of money were recovered, or the cases were unsuccessful.
Some complainants may expect employers to settle discrimination
cases quickly due to fear of publicity. But some employers believe
that if they settle discrimination cases easily, it will encourage
more employees to complain of discrimination. Complainants should
consider that litigation is expensive, and that they may not be
able to find attorneys who will take their cases on contingency
agreements, and also pay the litigation expenses.
Some complainants may not adequately consider what may be
legitimate, non-discriminatory reasons for the employment actions
that they challenge. In most cases, there are facts and arguments
to support both of the opposing parties, and the issues are ultimately
decided by judges or juries who may reach different conclusions.
It is difficult to predict with certainty how particular cases
will be decided in court.
This reality check is not intended to discourage complainants
from pursuing discrimination cases, but rather is intended to
encourage them to carefully and realistically evaluate all aspects
of their cases, including strengths and weaknesses, and monetary
value. Since complainants are usually under duress from their
employment problems, it is advisable for them to consult with
other persons about the best course of action to follow.
Sometimes complainants use "self-help" techniques
that they think will help their discrimination cases, but which
actually hurt their cases later. For example, courts have held
that some complainants who have falsified employment records,
or taken restricted employment records without authorization,
may not be entitled to full damages or reinstatement. Other complainants
have tape recorded conversations not knowing that the recordings
may be inadmissible as evidence if they were made in violation
of law. Oregon law prohibits recording an in-person conversation,
unless all participants are informed (ORS 165.540(1)(c)), and
prohibits recording a telephone or radio communication unless
one participant gives consent (ORS 165.540(1)(a), and 165.543(1)).
Complainants should be cautious about using questionable "self-help"
techniques. Complainants should consider other ways to preserve
evidence, and seek legal advice if they feel that the evidence
is important.
Evidence that is created by a party in a discrimination case
may usually be discovered by the opposing party in litigation,
and other proceedings. This evidence may include things that a
party may not expect to be disclosed, like notes, calendars, electronic
mail, and computer files. The scope of questioning in depositions
is also broad. There are privileges that may protect some evidence
from disclosure; for example, communications with attorneys that
are covered by the attorney-client privilege. Complainants should
consider seeking legal advice if they have questions about evidence.
Equal employment opportunity laws provide that employers may
not retaliate because a person files a discrimination complaint;
participates, assists or testifies in an investigation or litigation;
or, opposes discriminatory employment practices (e.g., 42 USC
2000e-3; 29 USC 215(a)(3)). Alleged retaliation may include actions
like discharge, demotion, harassment, or negative employment references.
Complainants who experience retaliation should contact the appropriate
enforcement agencies, because the agencies will probably require
the filing of additional retaliation complaints within the prescribed
time limit.
Government agencies have staff who will answer questions from
the public. These agencies are a good source of information about
the laws that they administer. Their staff are busy, so you may
have to continue to call until you reach someone who will answer
your questions.
U.S. Equal Employment Opportunity Commission - Call 1-800-669-4000
to be connected with the EEOC office nearest to you.
U.S. Department of Labor, Wage and Hour Division - San Francisco
(415) 744-5088; Sacramento (916) 979-2045; Glendale (213) 894-6845;
San Diego (619) 557-6375; and, Portland, Oregon (503) 326-3052.
Oregon Bureau of Labor and Industries, Civil Rights Division
- 1-503-731-4074.
Some government agencies have web sites that you may reach
through the links on the Government Agencies and Programs page
of this web site. The Oregon Bureau of Labor and Industries, Civil
Rights Division, opened its new web site in July 1998.