“You can’t do that, it’s discrimination!” The word “discrimination” in the context of employment law refers to an employer treating one employee differently than others, on the basis of the employee’s membership in a legally protected class, or that employee’s having engaged in legally protected activity. Some, but not all, personal attributes are within protected classes; some, but not all, activities are legally protected. It’s critical to figure out why an employer did a particular thing. And employers, as a rule, tend not to be particularly candid about things like this, which is why you need legal help to get to the bottom of it all and to know what remedies are available to you because of it.
What’s more, there are sometimes very short timelines to start acting on your legal rights in this area. If you think you might be on the receiving end of employment discrimination, contact me as soon as you can!
This is not simple law, and there are things that might not seem obvious at first glance. Sexual harassment, for instance, is actually a form of discrimination. In today’s world of increasing awareness of issues such as inherent psychological bias, durability of institutional behaviors, and a growing spectrum of facets of individuality requiring attention, the reputational and economic stakes of compliance are higher than ever.
What’s more, Oregon has, as recently as the 2019 legislative session, dramatically expanded the rights available to employees claiming adverse consequences of employment decisions. And unlike many other states, Oregon’s laws apply to nearly all employers – there are no “small employer” exemptions to these laws!
While a website like this does not allow for an in-depth analysis of each of these categories, an overview is helpful to see both the breadth of issues that may be legally regulated as well as how different political decisions made by different legislators, judges, and regulators, can have an impact on a wide variety of employment situations. Because Gunderson Employment Law practices the law of both California and Oregon, both states are included for comparison.
Personal Statuses Protected By Anti-Discrimination Law
| Status | Jurisdiction | ||
|---|---|---|---|
| Federal | Oregon | California | |
| Age: 40+ | ADEA | ORS 659A.030(1) | Government Code § 12940 et seq |
| Age: 18-39 | Generally not protected | ORS 659A.030(1) | Generally not protected |
| Caring for self or family member while sick | FMLA | ORS 659A.030(1) | Government Code § 12945 |
| Citizenship or Immigration Status, assuming documentable legal right to work in United States and ITAR requirement of status as a “U.S. Person” (which is different than citizenship) | CSRA-1978 (applies to Federal employment issues only for non-citizens with appropriate work visas); rights to equal treatment as citizens under NRLA and FLSA. | ORS 659A.030(1) | Citizenship can be pretext for national origin discrimiation, per DFEH |
| Complying with summons for jury duty | May not be directly protected | ORS 10.090 | Labor Code § 230 |
| Criminal Record | Not protected | Generally, see prohibition against initial inquiry about criminal activity, ORS 659A.360 and for employers in the City of Portland, Portland City Code Ch. 23.10.030; for expunged juvenile criminal convictions, ORS 659A.030(1) | “Fair Chance Act” codified at Gov’t Code § 12952 prohibits inquiry into criminal history until a conditional offer of employment is made |
| Disability | ADA; portions of Rehabilitation Act | ORS 659A.030(1) | Government Code § 12940 et seq |
| Gender Identity (including Transgender Status) | Interpreted by the EEOC to be sex discrimination under Title VII , per Macy v. Department of Justice, EEOC App. 0120120821 (2012) | ORS 659A.030(1) | Government Code § 12940 et seq |
| Genetic Information | GINA-2008 | ORS 659A.030(1) | Government Code § 12940 et seq |
| Marital Status | Not generally protected, however, use of marital status in employment decisions has been interpreted as evidence of sex discrimination. | ORS 659A.030(1) | Government Code § 12940 et seq |
| Military or Veteran Status | SSCRA, USERRA | ORS 659A.030(1); ORS 659A.082 | Government Code § 12940 et seq |
| National Origin or Ancestry | Title VII | ORS 659A.030(1) | Government Code § 12940 et seq |
| Off-Duty Marijuana Use | Unprotected. Possession or use of marijuana is a federal crime under 21 USC § 841 et seq. regardless of legality under any state law. | Caselaw suggests that off-duty marijuana use is unprotected. | Not protected |
| Off-Duty Tobacco Use (absent bona fide occupational requirement or CBA provision restricting use) | Not protected | ORS 659A.315 | Not protected |
| Parental or Familial Status | Successive executive orders for federal employment by statute, not otherwise directly protected; in some cases may be a component of sex or disability discrimination | ORS 659A.030(1) | Government Code § 12940 et seq |
| Political Ideology or Activity | Private political activity or beliefs are generally unprotected for private sector employees under Federal Law. Federal employees have rights to off-duty political activity pursuant to CSRA-1978. | Refusal to participate in employer-sponsored political activity protected by ORS 659.785(1), some exceptions for certain employers. Public employees’ rights of on-the-job political expression are subject to, effectively, a case-by-case analysis. Employer may not use terms and conditions of employment to influence an employee’s vote. | Most off-duty political activity or beliefs are protected per Cal. Labor Code §§ 1101-1102. Employer may prohibit or restrict on-the-job political speech or activity. Employer likely may not use threat of adverse employment action to influence vote; Californians enjoy a “sacrosanct” right to a secret ballot for public elections. |
| Pregnancy | Per Pregnancy Discrimination Act, this constitutes sex discrimination under Title VII | ORS Ch. 659A | Government Code § 12940 et seq. |
| Race or Skin Color | Title VII, also Civil Rights Act of 1870 (42 U.S.C. §§ 1981-1985, as amended) | ORS Ch. 659A | Government Code § 12940 et seq. |
| Religion or Creed | Title VII | ORS Ch. 659A; also most employers may not take adverse action against employee who fails to attend employer-sponsored religious activity per ORS 659.785(1) | Government Code § 12940 et seq |
| Sex (as opposed to gender identity) | Title VII; Equal Pay Act | ORS Ch. 659A; Oregon Equal Pay Act (ORS 652.220) | Government Code § 12940 et seq.; Cal. Civ. Code § 51.9 |
| Sexual Orientation | Title VII protection currently under review by Supreme Court of United States | ORS 659A.030(1) | Government Code § 12940 et seq. (includes presumptions about sexual orientations regardless of accuracy) |
| Training for, qualifying for, or competing in the Olympics | Not protected | ORS 659.865(1) | Not protected |
A termination, demotion, workplace discipline, or other adverse employment action that is motivated in substantial part by factors like these is a strong candidate for an “unlawful employment practice,” which may well be the subject of legal action. If you suspect that something like this has happened to you, do not wait. Contact me as soon as you think something has gone amiss. DO NOT WAIT, SHORT TIME LIMITATIONS TO TAKE ACTION MAY APPLY. Learn about your rights and options, and make decisions promptly and with the benefit of legal advice. I hope nothing like this happens to you, but if it does, this is a core part of my business so please do not hesitate to reach out.