Bill Text: OR SB767 | 2013 | Regular Session | Introduced
Bill Title: Relating to unlawful discrimination.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB767 Detail]
Download: Oregon-2013-SB767-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2225
Senate Bill 767
Sponsored by Senator FERRIOLI, Representative HUFFMAN
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires complainant to sign complaint alleging unlawful
discrimination under penalty of false swearing.
Permits respondent to be represented by person other than
attorney in investigation or proceeding responding to complaint
of unlawful discrimination.
Awards fees and costs to respondent if complaint is dismissed
following investigation or if formal charge is dismissed
following hearing.
Prohibits Commissioner of Bureau of Labor and Industries from
questioning or seeking information from respondent in
investigation until certain conditions are met.
Permits respondent to question complainant and other witnesses
in course of investigation.
Requires hearing within 10 days after formal charges are served
on respondent.
A BILL FOR AN ACT
Relating to unlawful discrimination; creating new provisions; and
amending ORS 183.457, 659A.820, 659A.835 and 659A.850.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 659A.820 is amended to read:
659A.820. (1) As used in this section, for purposes of a
complaint alleging an unlawful practice under ORS 659A.145 or
659A.421 or discrimination under federal housing law, 'aggrieved
person' includes a person who believes that the person:
(a) Has been injured by an unlawful practice or discriminatory
housing practice; or
(b) Will be injured by an unlawful practice or discriminatory
housing practice that is about to occur.
(2) Any person claiming to be aggrieved by an alleged unlawful
practice may file with the Commissioner of the Bureau of Labor
and Industries a verified written complaint that states the name
and address of the person alleged to have committed the unlawful
practice. The complaint must be signed by the complainant. The
complaint must set forth the acts or omissions alleged to be an
unlawful practice. The complainant may be required to set forth
in the complaint such other information as the commissioner may
require. Except as provided in ORS 654.062, a complaint under
this section must be filed no later than one year after the
alleged unlawful practice.
(3)(a) Except as provided in paragraph (b) of this subsection,
a complaint may not be filed under this section if a civil action
has been commenced in state or federal court alleging the same
matters.
(b) The prohibition described in paragraph (a) of this
subsection does not apply to a complaint alleging an unlawful
practice under ORS 659A.145 or 659A.421 or alleging
discrimination under federal housing law.
(4) If an employer has one or more employees who refuse or
threaten to refuse to abide by the provisions of this chapter or
to cooperate in carrying out the purposes of this chapter, the
employer may file with the commissioner a verified complaint
requesting assistance by conciliation or other remedial action.
(5) Except as provided in subsection (6) of this section, the
commissioner shall notify the person against whom a complaint is
made within 30 days of the filing of the complaint. The
commissioner shall include in the notice the date, place and
circumstances of the alleged unlawful practice.
(6) The commissioner shall notify the person against whom a
complaint alleging an unlawful practice under ORS 659A.145 or
659A.421 or discrimination under federal housing law is made
within 10 days of the filing of the complaint. The commissioner
shall include in the notice:
(a) The date, place and circumstances of the alleged unlawful
practice; and
(b) A statement that the person against whom the complaint is
made may file an answer to the complaint.
{ + (7) The complaint shall be signed by the complainant and
must contain a written declaration that the complaint is made
under the penalties for false swearing as provided in ORS
162.075. + }
SECTION 2. { + Section 3 of this 2013 Act is added to and made
a part of ORS chapter 659A. + }
SECTION 3. { + Notwithstanding ORS 9.320, a respondent may be
represented by a person other than an attorney in an
investigation or proceeding in response to a complaint filed
under ORS 659A.820 or 659A.825. + }
SECTION 4. ORS 659A.835 is amended to read:
659A.835. (1) Except as provided in subsection (2) of this
section, after the filing of any complaint under ORS 659A.820 or
659A.825, the Commissioner of the Bureau of Labor and Industries
may investigate the complaint.
(2) The commissioner shall commence an investigation of any
complaint filed under ORS 659A.820 or 659A.825 alleging an
unlawful practice under ORS 659A.145 or 659A.421 or
discrimination under federal housing law within 30 days after the
filing of the complaint.
{ + (3) The commissioner may not question or seek information
from the respondent until the commissioner evaluates all evidence
presented by the complainant and determines that there is
credible evidence to complete the investigation. If the
commissioner determines that there is no credible evidence to
complete the investigation, the commissioner shall dismiss the
complaint and award reasonable attorney fees, or reasonable fees
charged by a representative other than an attorney, and costs to
the respondent. If the commissioner determines that there is
credible evidence to complete the investigation, the commissioner
shall make all evidence provided by the complainant available to
the respondent before requesting information from the respondent.
(4) During the investigation, the commissioner shall make
available to the respondent all evidence collected by the
commissioner and the commissioner's notes, correspondence,
reports or memoranda made in connection with the investigation.
(5) At the request of the respondent, the commissioner shall
arrange a meeting between the respondent and the complainant and
any other witnesses so that the respondent may question the
complainant and other witnesses. The respondent may question the
complainant or other witnesses only in the presence of the
commissioner. + }
{ - (3) - } { + (6) + } If, by reason of an investigation
under this section, the commissioner determines that additional
persons should be named as respondents in the complaint, the
commissioner may add the names of those persons to the complaint.
The commissioner may name additional persons as respondents under
this subsection only during the course of the investigation.
Within 10 days after identifying an additional person who will be
named as a respondent, the commission shall serve the person with
a copy of the complaint that identifies the alleged
discriminatory housing practice and a notice that advises the
person of the procedural rights and obligations of the person,
including the person's right to file an answer to the complaint.
{ - (4) - } { + (7) + } If an investigation under this
section discloses any substantial evidence supporting the
allegations of a complaint, the commissioner shall issue a
finding of substantial evidence. The finding must be sent to the
respondent and the complainant and must be signed by the
commissioner or the commissioner's designee. The finding must
include at least the following information:
(a) The names of the complainant and the respondent;
(b) The allegations contained in the complaint;
(c) Facts found by the commissioner that are related to the
allegations of the complaint; and
(d) A statement that the investigation of the complaint has
disclosed substantial evidence supporting the allegations of the
complaint.
{ + (8) If an investigation under this section does not
disclose any substantial evidence supporting the allegations of a
complaint, and the commissioner dismisses the complaint, the
commissioner shall pay reasonable attorney fees, or reasonable
fees charged by a representative other than an attorney, and all
costs incurred by the respondent. + }
SECTION 5. { + Section 6 of this 2013 Act is added to and made
a part of ORS chapter 659A. + }
SECTION 6. { + Unless otherwise agreed upon by the parties,
the Commissioner of the Bureau of Labor and Industries shall
conduct a hearing with 10 days of serving formal charges prepared
under ORS 659A.845 on all respondents. + }
SECTION 7. ORS 659A.850 is amended to read:
659A.850. (1)(a) All proceedings before the Commissioner of the
Bureau of Labor and Industries under this section shall be
conducted as contested case proceedings under the provisions of
ORS chapter 183. Except as provided in paragraph (b) of this
subsection, the commissioner may appoint a special tribunal or
hearing officer to hear the matter. The commissioner may affirm,
reverse, modify or supplement the determinations, conclusions or
order of any special tribunal or hearing officer appointed under
this subsection. The scheduling of a hearing under this section
does not affect the ability of the commissioner and any
respondent to thereafter settle the matters alleged in the
complaint through conference, conciliation and persuasion.
(b) In a proceeding under this section alleging an unlawful
practice under ORS 659A.145 or 659A.421 or discrimination under
federal housing law:
(A) Only an employee of the Bureau of Labor and Industries may
be a member of a special tribunal or a hearing officer appointed
to hear the matter.
(B) An aggrieved person may intervene as a party in the
proceeding. The commissioner may award prevailing party costs and
reasonable attorney fees to a person who intervenes.
(2) After considering all the evidence, the commissioner shall
cause to be issued findings of facts and conclusions of law.
(3) The commissioner shall issue an order dismissing the formal
charges against any respondent not found to have engaged in any
unlawful practice alleged in the complaint.
(4) After a hearing under this section, the commissioner shall
issue an appropriate cease and desist order against any
respondent found to have engaged in any unlawful practice alleged
in the complaint. The order must be signed by the commissioner
and must take into account the need to supervise compliance with
the terms of order. The order may require that the respondent:
(a) Perform an act or series of acts designated in the order
that are reasonably calculated to:
(A) Carry out the purposes of this chapter;
(B) Eliminate the effects of the unlawful practice that the
respondent is found to have engaged in, including but not limited
to paying an award of actual damages suffered by the complainant
and complying with injunctive or other equitable relief; and
(C) Protect the rights of the complainant and other persons
similarly situated;
(b) Submit reports to the commissioner on the manner of
compliance with other terms and conditions specified in the
commissioner's order, and take other action as may be required to
ensure compliance with the commissioner's order; and
(c) Refrain from any action specified in the order that would
jeopardize the rights of the complainant or other persons
similarly situated, or that would otherwise frustrate the
purposes of this chapter.
(5) A cease and desist order issued under subsection (4) of
this section may be recorded in the County Clerk Lien Record in
the manner provided by ORS 205.125 and enforced in the manner
provided by ORS 205.126. In addition to enforcement under ORS
205.126, the order may be enforced by writ of mandamus or a civil
action to compel specific performance of the order.
(6) The commissioner may charge a respondent on a cease and
desist order the actual collection fees charged to the bureau by
any other governmental agency or any private collection agency
assisting in the collection of the judgment.
{ + (7) If the commissioner dismisses the formal charges
against a respondent, the commissioner shall pay reasonable
attorney fees, or reasonable fees charged by a representative
other than an attorney, and all costs incurred by the
respondent. + }
SECTION 8. ORS 183.457 is amended to read:
183.457. (1) Notwithstanding ORS 8.690, 9.160 and 9.320, and
unless otherwise authorized by another law, a person
participating in a contested case hearing conducted by an agency
described in this subsection may be represented by an attorney or
by an authorized representative subject to the provisions of
subsection (2) of this section. The Attorney General shall
prepare model rules for proceedings with lay representation that
do not have the effect of precluding lay representation. No rule
adopted by a state agency shall have the effect of precluding lay
representation. The agencies before which an authorized
representative may appear are:
(a) The State Landscape Contractors Board in the administration
of the Landscape Contractors Law.
(b) The State Department of Energy and the Energy Facility
Siting Council.
(c) The Environmental Quality Commission and the Department of
Environmental Quality.
(d) The Department of Consumer and Business Services for
proceedings in which an insured appears pursuant to ORS 737.505.
(e) The Department of Consumer and Business Services and any
other agency for the purpose of proceedings to enforce the state
building code, as defined by ORS 455.010.
(f) The State Fire Marshal in the Department of State Police.
(g) The Department of State Lands for proceedings regarding the
issuance or denial of fill or removal permits under ORS 196.800
to 196.825.
(h) The Public Utility Commission.
(i) The Water Resources Commission and the Water Resources
Department.
(j) The Land Conservation and Development Commission and the
Department of Land Conservation and Development.
(k) The State Department of Agriculture, for purposes of
hearings under ORS 215.705.
(L) The Bureau of Labor and Industries { + , except that lay
representatives for a hearing conducted under ORS 659A.850 shall
be governed by section 3 of this 2013 Act + }.
(2) A person participating in a contested case hearing as
provided in subsection (1) of this section may appear by an
authorized representative if:
(a) The agency conducting the contested case hearing has
determined that appearance of such a person by an authorized
representative will not hinder the orderly and timely development
of the record in the type of contested case hearing being
conducted;
(b) The agency conducting the contested case hearing allows, by
rule, authorized representatives to appear on behalf of such
participants in the type of contested case hearing being
conducted; and
(c) The officer presiding at the contested case hearing may
exercise discretion to limit an authorized representative's
presentation of evidence, examination and cross-examination of
witnesses, or presentation of factual arguments to ensure the
orderly and timely development of the hearing record, and shall
not allow an authorized representative to present legal arguments
except to the extent authorized under subsection (3) of this
section.
(3) The officer presiding at a contested case hearing in which
an authorized representative appears under the provisions of this
section may allow the authorized representative to present
evidence, examine and cross-examine witnesses, and make arguments
relating to the:
(a) Application of statutes and rules to the facts in the
contested case;
(b) Actions taken by the agency in the past in similar
situations;
(c) Literal meaning of the statutes or rules at issue in the
contested case;
(d) Admissibility of evidence; and
(e) Proper procedures to be used in the contested case hearing.
(4) Upon judicial review, no limitation imposed by an agency
presiding officer on the participation of an authorized
representative shall be the basis for reversal or remand of
agency action unless the limitation resulted in substantial
prejudice to a person entitled to judicial review of the agency
action.
(5) For the purposes of this section, 'authorized
representative' means a member of a participating partnership, an
authorized officer or regular employee of a participating
corporation, association or organized group, or an authorized
officer or employee of a participating governmental authority
other than a state agency.
SECTION 9. { + Sections 3 and 6 of this 2013 Act and the
amendments to ORS 183.457, 659A.820, 659A.835 and 659A.850 by
sections 1, 4, 7 and 8 of this 2013 Act apply to complaints filed
on or after the effective date of this 2013 Act. + }
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