On June 15, 2021, Governor Kate Brown signed and enacted Senate Bill 483 into law, amending the Oregon Safe Employment Act (OSEA) to include a significant new protection for employees alleging claims for employment discrimination and retaliation under the Act. Previously, if an employee brought an action alleging discrimination or retaliation under the Act, the burden ultimately rested on the employee to prove that the action taken by the employer was discriminatory or retaliatory. However, the amended law now shifts that burden of proof on the employer—that is, depending on the timing of the employer’s alleged adverse actions.
Effective immediately, ORS 654.062(7)(a) provides that in any action brought for discrimination or retaliation under the Act, there is now a rebuttable presumption that a violation has occurred “if a person bars or discharges an employee or prospective employee from employment or otherwise discriminates against an employee or prospective employee within 60 days after the employee or prospective employee has engaged in . . . protected activities[.]” ORS 654.062(7)(a) (emphasis added). Protected activities include expressing opposition to unsafe workplace practices, filing complaints, initiating proceedings, and reporting assaults that take place on the premises. As noted above, under this new provision the person accused of violating the Act bears the burden of persuasion and may rebut the presumption that a violation has occurred only by demonstrating, by a preponderance of the evidence, that the alleged adverse employment action was not discriminatory or retaliatory.
In addition, Senate Bill 483 included an emergency clause and a provision that the rebuttable presumption applies retroactively to complaints that have not been issued a final decision by BOLI as of June 15, 2021. Thus, on July 19, 2021, BOLI announced that it would be implementing new rules to respond to complaints made under the new measure, and “complaints that meet the criteria of the measure must now be investigated based on the rebuttable presumption, thus shifting the burden of proof and the investigatory process of the Civil Rights Division (CRD).” By enacting temporary rules, BOLI now has the ability to immediately respond and investigate complaints brought in accordance with Senate Bill 483.
Still, the new legislation does not modify existing law with respect to adverse actions occurring more than 60 days after an employee has engaged in a protected activity. ORS 654.062(b) (stating “[i]f a person bars or discharges an employee or prospective employee from employment or otherwise discriminates against the employee or prospective employee more than 60 days after the employee or prospective employee has engaged in any of the protected activities . . . such action does not create a presumption in favor of or against finding that a violation . . . has occurred.”) (emphasis added). In those circumstances, the burden remains on the employee or prospective employee to establish a causal link between an employer or prospective employer’s adverse action and the protected activity.
Notably, prior to the enactment of this legislation, employees could frequently create a triable question of fact regarding an employer’s alleged retaliatory intent by establishing a proximate temporal link between an employee engaging in a protected activity and an employer’s adverse employment action. However, this new law will have a significant impact on litigation moving forward. in that the burden is now presumptively on employers to show that adverse actions were based on legitimate, nonretaliatory reasons when taken within two months of the employee engaging in a protected activity. Thus, moving forward, employers may want to consider carefully evaluating the timing of any disciplinary actions for employees, and maintaining detailed documentation in support of any disciplinary action taken after an individual has engaged in a protected activity under the Act.
