Oregon Race Discrimination

Racial discrimination in the American workplace unfortunately persists in the 21st century.  This, of course, despite the various statutory laws in the United States and in Oregon which provide strong protections against racial discrimination in employment, whether in hiring, promotion, or termination.  Although we have unequivocal legislation in this area, prevailing on race discrimination cases in Oregon courts, along with retaliation and harassment claims based on race, remains a significant challenge.  This article addresses some of the reasons Oregon civil rights lawyers and their employees alleging race discrimination must state a strong case in order to survive procedural motions and to prevail at trial.     

Statutory Claims of Race Discrimination

Title VII and Oregon statutes prohibit discrimination, harassment or retaliation* based on race in employment.  42 U.S.C. § 2000e, et seq; ORS 659A.030(1)(b).  Under both statutes, an employee may establish a prima facie case for disparate treatment using direct or circumstantial evidence.   Title VII and ORS 659A.030(1)(b) also ban discrimination on other grounds, e.g. sex, religion, national origin, another federal statute.  Another federal statute, 42 U.S.C. § 1981, is expressly targeted to race discrimination and exclusively to race discrimination. 

For details of the legal requirements and prerequisites to filing a race discrimination claim under these statutes, workers employed in Oregon must consult with an Oregon race discrimination lawyer.  As with our other publications on this website, this article is not legal advice.  While detailed discussion is beyond the scope of this article, each of these statutes has advantages/disadvantages relative to the others.  For example, while Title VII applies only to employers of at least 15 employees, Oregon civil rights law contains no such limitation and ORS 659A.030 applies to all employers, regardless of size.  Nor does § 1981 require a minimum number of employees. 

Oregon employees must file race discrimination claims with the EEOC (exhaustion of administrative remedies) prior to proceeding with a Title VII claim; according to the EEOC, this filing must be made within 300 days in the state of Oregon (this period is 180 days in some states).      https://www.eeoc.gov/field/sanfrancisco/timeliness.cfm   A race discrimination claim may be filed with the Oregon Bureau of Labor and Industries ("BOLI") within 1 year; however, under Oregon law, exhaustion of administrative remedies is not required for race discrimination claims and an employee may proceed directly to court with such a claim.  § 1981 does not have an exhaustion of administrative remedies requirement and a 4-year statute of limitations applies. 

* Retaliation in the context of race discrimination refers to retaliation for engaging in "protected activity" such as reporting race discrimination to supervisors or human resources.
To state a basic, "prima facie" case of retaliation, a plaintiff must generally show (1) she was involved in a protected activity, (2) her employer took an adverse action against plaintiff, and (3) there is a causal relationship between the protected activity and the adverse action.

Who is Protected by Statutes Banning Racial Discrimination in Oregon?

A fundamental principle is that we are all protected by state and federal statutes proscribing racial discrimination, retaliation, and harassment at work.  Civil rights laws banning racial discrimination do not create 'special' treatment for classes of employees, although this misconception persists and can feed into false negative stereotypes and "implicit bias."  The takeaway point here is that we all benefit from laws against race discrimination in employment (as well as similar laws governing housing, financial transactions, and public accommodations).     

I recommend reading the EEOC Questions and Answers page, linked below, for a discussion of this topic.  See "Questions and Answers About Race and Color Discrimination in Employment."  In this resource, the EEOC explains:

"Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating in employment based on race, color, religion, sex, and national origin.  It also prohibits retaliation against persons who complain of discrimination or participate in an EEOC investigation.  Everyone is protected from race and color discrimination.  Whites, Blacks, Asians, Latinos, Arabs, American Indians, Alaska Natives, Native Hawaiians, Pacific Islanders, persons of more than one race, and all other persons, whatever their race, color, or ethnicity."

https://www.eeoc.gov/policy/docs/qanda_race_color.html

The EEOC "Questions and Answers" discussion illustrates several thought-provoking examples of what may be unlawful racial discrimination, from intentional discrimination to more subtle neutral policies that can be discriminatory (e.g. a no-beard policy that is unrelated to job performance or safety). 

Finally, it is worth noting that the definition of "race" for purposes of civil rights statutes is still subject to litigation on occasion.  See Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016) (Second Circuit Court of Appeals holding that for purposes of Title VII and Section 1981, "Hispanic" is a race, while noting that:  "This case asks us to resolve a vexed and recurring question:  what does it mean to be Hispanic?  Specifically, it presents the qeustion of whether 'Hispanic' describes a race for purposes of § 1981 and Title VII."). 

Successfully Proving Race Discrimination Claims in Oregon . . . 

. . . .  remains difficult.  For proof of this proposition, one can review the facts in a few recent published decisions from the Oregon state courts.  See., e.g., Summerfield v. Oregon Liquor Control Commission, 294 Or App 415 (2018) (Oregon Court of Appeals decision recounts only procedural facts necessary to its decision regarding expert witness, but local press covered the facts in detail); Henley v. Employment Department, 284 Or App 781 (2017) (an Unemployment Insurance denial decision finding no good cause for resignation despite underlying evidence of racial discrimination).  Both of these cases involved significant indicia of race discrimination, yet the decision-makers concluded that the employees had not successfully proved their cases under the applicable legal standards.   

On the other hand, there are recent decisions in state courts and U.S. District Court, D. Oregon, denying employer motions to dismiss or for summary judgment.  See, e.g., Gollah v. City of Millersburg, 2018 WL 6183268 (D. Or. 11/27/2018) (plaintiff has stated facts alleging racial discrimination that, if true, entitle him to relief under ORS 659A.030(1)(b) and 42 U.S.C. § 1981); Randall v. United Parcel Service, Inc., 2018 WL 4955197 (D.Or. 10/12/2018) (employer's motion for summary judgment denied as to race discrimination, retaliation for reporting racial and sexual discrimination to supervisors and human resources, and for hostile work environment claims based on racial and sexual harassment); Medina v. State, 278 Or App 579 (2016) (Hispanic former employee of state Dept. of Fish and Wildlife successfully appeals trial court's grant of summary judgment to employer on race discrimination and retaliation claims).   

Despite difficulties in successfully prosecuting race discrimination claims, successful race discrimination lawsuits have resulted in large jury verdicts in Oregon, including, as extensively covered in the local media, cases against Portland Public Schools and Daimler Trucks.  While it perhaps goes without saying, large jury verdicts in any type of employment case are not the norm.  The bottom line is that even in the area of race discrimination, the facts and the law and legal advocacy must all come together, generally in the face of vastly superior resources on the employer side, in order for employees to prevail. 

Conclusion

Is there less institutionalized race discrimination today than there was 50 or 100 years ago?  We certainly hope so and in some areas demonstrably so.  But the persistence of race discrimination is also undeniable.  It is one of the reasons our firm represents workers in civil rights matters.  The statutes are strong but the reality is that the state and federal agencies, BOLI and the EEOC, have limited resources and enforcement of laws against race discrimination in Oregon and throughout the country is often left to private litigants, individual employees and their employment attorneys.    


Category: Discrimination