Oregon Administrative Rules

 

BUREAU OF LABOR AND INDUSTRIES

 

DIVISION 3

COMPLAINT PROCEDURES

 

839-003-0000

Purpose and Scope

(1) These rules will govern the complaint procedures of the Civil Rights Division for all complaints filed with the Division on or after the effective date of these rules.

(2) In any matter that arises which is not governed by these rules, the Commissioner will exercise discretion under the law. If any provision or term of these rules, or an amendment to them, is ruled invalid, the remaining provisions will continue in full force and effect.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0005

Definitions

Except where otherwise required by ORS 654.005 and except as provided below, definitions for terms used in these rules are found in ORS 659.010 and 659.400:

(1) "Administrator" means the Administrator of the Civil Rights Division of the Bureau of Labor and Industries or a designee of the Administrator.

(2) "Commissioner"means the Commissioner of the Bureau of Labor and Industries or a designee of the Commissioner.

(3) "Complaint" means for the purpose of ORS Chapter 659, a written, notarized statement signed by the Complainant which:

(a) Gives the name and address of the Complainant and the Respondent;

(b) Identifies the protected class basis of the complaint;

(c) Describes the actions complained of, including:

(A) The date(s) of occurrence;

(B) What the action was and how it harmed the Complainant;

(C) The causal connection between Complainant's protected class and the alleged harm.

(4) "Complainant" means a person who files a complaint personally or through an attorney.

(5) "Days," unless otherwise stated in the text, means calendar days; "work days" means Monday through Friday, excepting holidays officially recognized by the State of Oregon.

(6) "Division" means the Civil Rights Division of the Bureau of Labor and Industries.

(7) "Notice" means written information sent by mail to the person's last known personal or business address or business address of the person's designated representative or delivered personally.

(8) "Protected class" means a group of people who are protected by law from discrimination on the basis of a shared characteristic, or a perception of that characteristic, such as race, sex, age, disability or other.

(9) "Substantial Evidence" means such proof as a reasonable person would accept as sufficient to support the allegations of the complaint.

(10) "Substantial Evidence Determination" means the Division's written findings of Substantial Evidence.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 7-1982, f. & ef. 4-22-82; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0010

Who May File

(1) Any person claiming to be harmed by an act prohibited by statutes enforced by the Civil Rights Division may file a complaint with the Division personally or through an attorney.

(2) Any employee, or a representative authorized to do so by ORS 654.062(2), may file a complaint with the Division alleging a violation of ORS 654.062(5).

(3) The Commissioner or Attorney General may file a complaint whenever there is reason to believe that a person or entity has violated statutes enforced by the Division.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 7-1982, f. & ef. 4-22-82; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0015

Equal Employment Opportunity Commission

When a complaint is filed alleging employment discrimination in violation of state law, the Division will process the complaint. If the complaint alleges facts which would also violate federal discrimination statutes administered by the Equal Employment Opportunity Commission (hereafter EEOC), the Division may accept it on behalf of EEOC, if it meets federal filing requirements, and will forward it to EEOC. Under a work-sharing agreement between the Division and EEOC the Division, in most instances, will process the complaint for both agencies.

Stat. Auth.: ORS 659

Stats. Implemented: ORS 659.040

Hist.: BL 7-1981, f. & ef. 6-25-81

 

839-003-0020

Civil Suit

(1) Instead of filing a complaint with the Division, a person who alleges unlawful discrimination may file a civil suit as provided in ORS 659.121 or ORS 30.680. A person who files a civil suit as provided in ORS 659.121 or ORS 30.680 may not later file a complaint with the Division which makes the same allegations made in that civil suit.

(2) After filing a complaint with the Division, a Complainant may file a civil suit in state or federal court. The Complainant should notify the Division of the filing of the civil suit. If this civil suit arises from the same set of facts as the complaint, the Division will dismiss the complaint. The Division will notify both the Complainant and Respondent that it has dismissed the complaint and will take no further action.

(3) The Commissioner will notify the Complainant of the right to file suit as provided in ORS 659.121 when a complaint is dismissed by the Division or on the one year anniversary of the filing of the complaint, whichever comes first. The Complainant will have 90 days from the mailing of the notice to file a civil suit. To sue a public employer, a tort claim notice must be appropriately filed. Processing of the complaint does not toll the time requirements to file a civil suit.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659.

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 12-1982, f. & ef. 8-10-82; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0025

Filing a Complaint

(1) Except as provided in section (2) of this rule, a complaint must be filed with the Division within one year of notice to the Complainant of the alleged unlawful practice. If the alleged unlawful practice is of a continuing nature, the right to file a complaint exists so long as the complaint is filed within one year of the last date of occurrence.

(2) A person alleging discrimination for reporting or opposing unsafe or unhealthful work conditions (ORS 654.062) must contact the Division within 30 days of the date of the alleged unlawful practice. However, where extenuating circumstances exist, the Administrator may extend the 30 day period as provided in 29 CFR 1977.15(d)(3).

(3) The procedures for filing a complaint are as follows:

(a) A person makes an inquiry to the Division;

(b) If the Division determines that the person has a basis for filing a complaint, a complaint will be drafted and sent to the person.

(c) The person will review the complaint and have it signed and notarized. The Division will provide notary service if needed.

(d) If the person is an unemancipated minor the complaint shall be signed by the minor's parent or legal guardian.

(4) A person or the person's attorney may file a complaint with the Division if it meets the standards in OAR 839-003-0005(3).

(5) The filing date is the date the Division receives the complaint which meets the standards contained in OAR 839-003-0005(3).

Stat. Auth.: ORS 659

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98

 

839-003-0030

Where to File

A complaint may be filed with the Division at any Bureau office in person or by mail.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0035

Notice to Respondent

The Division will send a notice of the filing of a complaint with a copy of the complaint to the Respondent within 30 days of the date a complaint is filed.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0040

Amendment

(1) The Division may amend a complaint to correct technical defects on its own initiative or at the request of the Complainant with the agreement of the Division any time prior to the issuance of specific charges. Examples of technical defects include: clerical errors, addition or deletion of Respondents and errors in citation of statutes.

(2) A complaint may be amended to add a protected class only if the addition is supported by facts already alleged. New facts may not be added. If new facts are alleged, a new complaint meeting the standards provided in OAR 839-003-0005(3) must be filed.

(3) Amended complaints need not be signed or notarized.

(4) The Division will send a copy of the amended complaint to the Complainant and the Respondent.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0045

Withdrawal of Complaint

A Complainant may voluntarily withdraw a complaint at any time giving the Division written notice of the decision to withdraw. If the Complainant wants a federal "right to sue letter," the Complainant shall make a written request to EEOC or to the Division. If the request is made to the Division, the Division will forward the request to EEOC.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0050

Administrative Dismissal

(1) The Division will dismiss the complaint if it determines that the Bureau has no jurisdiction over the allegations of the complaint. The Division may dismiss the complaint if a proceeding based on the same set of facts is commenced with another agency.

(2) If a Complainant or the Complainant's attorney fails to cooperate with the Division, the complaint may be dismissed.

(3) The Complainant will notify the Division in writing of any change in address and telephone number. When a Complainant cannot be located by reasonable efforts, the Division may dismiss the complaint.

(4) The Division will dismiss the complaint unless substantial evidence of unlawful discrimination is found.

(5) Such notice of dismissal will include a statement that the complaint has been dismissed and a notice of Complainant's right to file a civil suit as provided for in ORS 659.121 and ORS 30.680, if such right exists.

(6) The Division will dismiss complaints subject to OAR 839-003-0015 in accordance with federal requirements.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0055

Conciliation Agreement Procedures

(1) The Division encourages Complainants and Respondents to resolve complaints by mutual agreement at any time. The Division will attempt to facilitate settlement between them. The Division will not, however, permit these negotiations to become so lengthy that they defeat the overall purpose of the statutes enforced by the Division.

(2) If the Complainant and the Respondent agree upon settlement, a Division representative will draft a conciliation agreement. The agreement will state:

(a) That a "no fault" settlement has been reached;

(b) That the Complainant, the Respondent and the Civil Rights Division accept the terms of the agreement as a resolution of the complaint;

(c) The specific action(s) the Complainant and Respondent will take in settlement of the complaint and the time within which the action(s) will be taken; and

(d) That the Division may investigate any alleged breaches of the agreement.

(3) The conciliation agreement shall not include release language that applies to any forum other than the Civil Rights Division.

(4) The Division may allow the Complainant and the Respondent to include a private agreement with release language in addition to the Division' agreement. The Division will not be a party to nor will it enforce private agreements.

(5) The Complainant, the Respondent and a representative of the Division will sign the conciliation agreement. The Complainant and the Respondent will receive copies of the signed agreement. Upon execution of this agreement, the Division will dismiss the complaint and notify the Complainant and the Respondent.

(6) Nothing in these rules is intended to preclude private settlement between the Complainant and the Respondent

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0060

Fact Finding Conference

(1) At its discretion, the Division may hold a fact finding conference. This conference may be part or all of the Division's investigation of the complaint. The Complainant and the Respondent will attend the conference and a Division representative will conduct the conference. The purpose of the conference will be:

(a) To review evidence regarding the complaint;

(b) To identify the undisputed elements of the complaint;

(c) To define and, if possible, resolve the disputed elements of the complaint;

(d) To attempt to settle the complaint.

(2) A Division representative will schedule the conference, notifying both the Complainant and the Respondent of the time and place. The Division representative may require the Complainant and the Respondent to provide information and documents relevant to the complaint. The Division may issue subpoenas ad testificandum to compel the Respondent's representatives to attend the conference and issue subpoenas duces tecum to compel the production of documents at the conference.

(3) The conference may be rescheduled, subject to the Division's approval, at the request of either the Complainant or the Respondent, or at the Division's discretion.

(4) Complainant's failure to attend the conference may cause the complaint to be administratively dismissed if the Division determines that the Complainant has failed to cooperate pursuant to OAR 839-003-0050.

(5) The Respondent's representatives should include:

(a) A person or persons with knowledge of the facts bearing on the complaint; and

(b) A person with authority to negotiate a settlement agreement.

(6) The Complainant and the Respondent may be accompanied by counsel, but counsel's role is strictly limited to providing legal advice to counsel's client.

(7) The Division's representative conducting the conference may:

(a) Question the participants as to their knowledge of the situation;

(b) Ask for additional statements and documentation from the Complainant and the Respondent;

(c) Terminate discussion of a particular point when further discussion would be irrelevant or repetitive;

(d) Exclude witnesses with the exception of the Complainant, the Respondent and counsel.

(e) Order unruly participants to leave the conference;

(f) Tape-record the conference;

(g) Attempt to negotiate a conciliation agreement between the parties;

(h) Recess or terminate the conference at any time.

(8) If the conference does not result in settlement, the Division will either continue the investigation or dismiss the complaint.

(9) If the Complainant attends the conference and the Respondent's representatives fail to attend after being subpoenaed under section (2) of this rule, the Division representative may proceed based on the information in the Division's possession.

Stat. Auth.: ORS 659.100(4) & ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 1-1993, f. 3-25-93, cert. ef. 4-1-93; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0065

Investigations

(1) The Division may investigate the allegations contained in the complaint. The purpose of this investigation is to determine objectively whether or not there is substantial evidence of unlawful discrimination. The Division will determine the method by which it will investigate or otherwise process complaints. The Division will not investigate allegations occurring more than one year prior to the date the complaint was filed but may investigate circumstances, regardless of the one year period, that pertain to timely allegations.

(2) The investigation may include interviews with the Complainant, the Respondent, and any other persons whom the Division chooses to interview. The investigation may also involve the examination and analysis of written documents.

(3) The investigator may tape record statements.

(4) Respondent has the right to have a representative present during interviews of current supervisory employees. Upon request to the Division by a current or former employee, Respondent's representative may be present.

(5) Upon request, the Division will provide Complainants, Respondents or witnesses a copy of any report of their own interview. The Division may request that the Complainant, the Respondent or the witness confirm by signature that the written report is an accurate representation of the statement. The Complainant, the Respondent or the witness may submit additional comments regarding the statement to the Division.

(6) The investigator may make written request to the Respondent for documents, records, files, or other sources of evidence. The Respondent will provide such information within 21 days of the date of the investigator's written request. The investigator may grant Respondent additional time in which to respond.

(7) The Division may issue subpoenas compelling access to premises, records and witnesses. Failure to respond to a subpoena may result in the Division making a determination based on the information available.

(8) Upon conclusion of the investigation, the Division will either issue a Substantial Evidence Determination or a dismissal of the complaint. A copy of the document will be mailed to the Complainant and the Respondent.

(9) Unless the Division finds substantial evidence of unlawful discrimination, the Division will dismiss the complaint, notify the Complainant and Respondent of the dismissal and notify the Complainant of the right to file a civil suit, if such a right exists.

(10) If the Division finds substantial evidence of unlawful discrimination, the complaint may be assigned to a Division representative for conciliation. However, the Commissioner may proceed directly to a contested case hearing if the interests of justice so require.

(11) A Substantial Evidence Determination or dismissal may not be appealed to the Division.

Stat. Auth.: ORS 659

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 13-1981, f. & ef. 11-18-81; BL 12-1982, f. & ef. 8-10-82; BL 12-1992(Temp), f. & cert. ef. 11-3-92; BL 2-1993, f. 3-25-93, cert. ef. 4-1-93; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98

 

839-003-0070

Conciliation

If the Division finds substantial evidence of unlawful discrimination, a representative of the Division may seek to eliminate the effects of the unlawful discriminatory act(s) by conference, conciliation, and persuasion. The Division will facilitate settlement negotiations between the Complainant and the Respondent as provided in OAR 839-003-0055.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659.

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0075

Failure of Conciliation Process

(1) Where no conciliation agreement is reached after a Substantial Evidence Determination the Division may, at its own discretion, proceed with the contested case process. The Division may dismiss the complaint at any time.

(2) The Complainant may withdraw the complaint at any time.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659.

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

839-003-0080

Access to Records/Confidentiality

(1) During the investigation, the contents of the investigative file and related records, other than the complaint, are confidential. However, any individual may inspect and copy information or statements that individual has given to the Division.

(2) After the complaint is closed, a copy of the closed file will be available for a fee subject to the State of Oregon's public disclosure law. To obtain a copy of a closed file a person will make a written request to the Division. The request must include the person's name, address, and telephone number, the Complainant's and the Respondent's names and the fee.

(3) The Division will not at any time disclose any information which is required to be kept confidential under any contractual agreement between the Bureau of Labor and Industries and federal, state and local agencies.

(4) Nothing that is discussed, proposed or offered respecting terms of settlement through informal procedures of conference, conciliation, or persuasion may be made public by the Division, its officials or employees. This provision does not apply to such disclosures to representatives of federal, state or local agencies as are appropriate or necessary to carry out the Bureau's function under ORS Chapter 659 and under other statutes.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 10-1984(Temp), f. & ef. 9-6-84; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0085

Subpoenas

(1) The Commissioner or the designee of the Commissioner may issue a subpoena to require:

(a) The attendance and testimony of witnesses;

(b) The production of evidence, including but not limited to books, records, correspondence or documents in the possession or under the control of the person subpoenaed; and

(c) Access to evidence to be examined or copied.

(2) If any person fails to comply with a subpoena issued under this rule, the Commissioner may initiate the legal procedures necessary to enforce compliance.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

 

839-003-0090

Remedy

(1) Remedy is that which eliminates the effect of an alleged unlawful practice. Such remedy may include, but is not limited to:

(a) In cases of discrimination in employment: employment or re-employment; wages or other benefits lost due to the practice; directly related out-of-pocket expenses attributable to the practice; compensation for emotional distress and impaired personal dignity; and interest;

(b) In cases of discrimination in housing or by places of public accommodation: a rental, lease or sale of real property; the service lost; directly related expenses or lost benefits attributable to the practice; compensation for emotional distress and for impaired dignity; and interest.

(2) Settlements of complaints and the awards in Commissioner's Orders do not necessarily include all possible remedies named above. Nothing in this rule will be construed to limit or alter the statutory powers of the Commissioner to protect the rights of persons similarly situated to the Complainant or to order the performance of an act or a series of acts designed to eliminate the effect of any unlawful practice found.

(3) When the Respondent makes an offer of remedy, the Division will inform Complainant of the offer. If the Complainant does not accept an offer which the Division has determined will eliminate the effects of the unlawful practice, the Division may close the complaint.

(4) In addition, the Commissioner may issue an order addressed to the Respondent to eliminate the effects of any unlawful practice found, and may require Respondent to:

(a) Perform an act or series of acts designated therein and reasonably calculated to carry out the policy of these rules, and eliminate the effects of an unlawful practice found and protect the rights of those affected thereby;

(b) Take action and submit reports to the Commissioner on the manner of compliance with the terms and conditions specified in the Commissioner's order or agreement;

(c) Refrain from any action prohibited by the order or agreement which would jeopardize the rights of the individuals or groups named in the complaint or would frustrate the purpose and the policy of these rules.

(5) Enforcement: Any agreement or order issued by the Commissioner may be enforced by mandamus or injunction or by suit in equity to compel specific performance.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

839-003-0095

Monitoring

(1) The Division may review the provisions of conciliation agreements and orders to insure that the terms are being met. Such reviews may be conducted as a result of an alleged breach of the conciliation or order. The Division may take corrective action.

(2) Any person who has reason to believe that the terms of a conciliation or order have been breached will notify the Division in writing. Such notification will indicate which terms were breached and how they were breached in as much detail as possible.

Stat. Auth.: ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96

Complaint Procedures: Commissioner's Complaint

839-003-0100

Statement of Purpose

(1) It is declared to be the policy of the Commissioner of the Bureau of Labor and Industries that all citizens of the State of Oregon have a right to employment, housing, public accommodation, and private vocational, professional or trade schools without unlawful discrimination.

(2) In order to assure these civil rights, the Commissioner of the Bureau of Labor and Industries may make, sign and file a complaint whenever the Commissioner has reason to believe that any group of persons, or any individual, has been denied any such rights. The complaint will be processed in the same manner as any other complaint filed under OAR 839-003-0005.

Stat. Auth.: ORS 183 & ORS 659.103

Stats. Implemented: ORS 659

Hist.: BL 7-1985(Temp), f. & ef. 10-17-85; BL 11-1986, f. & ef. 10-29-86; BL 4-1996, f. & cert. ef. 3-12-96

839-003-0120

Concurrent Complaints

Nothing in these rules shall be construed:

(1) To either require or prohibit a Commissioner's complaint involving the same or similar issues or allegations stated in any complaint filed with the Commissioner or the Circuit Court by an individual under ORS 659.040, 659.045, or 659.121;

(2) To either require or prohibit the continued processing or initiation of a Commissioner's complaint in the event that a complaint filed with the Commissioner or the Circuit Court by an individual under ORS 659.040, 659.045, or 659.121, is resolved or dismissed, with or without remedy to the individual; or

(3) To alter or limit the private right of action provided to individuals in ORS 659.121 and/or 659.095.

Stat. Auth.: ORS 183 & ORS 659

Stats. Implemented: ORS 659.040

Hist.: BL 7-1985, f. & ef. 10-17-85; BL 11-1986, f. & ef. 10-29-86


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