BOLI'S CRD RESPONSE PROCESS
|Information for Respondents|
Employers, places of public accommodation, and those who provide housing may be accused of violating the civil rights of their employees or the public they serve.
Civil Rights Claims
Oregon law prohibits discrimination or harassment based on:
- National origin
- Reporting or opposing an unsafe/unhealthy working conditions
- Invoking the Workers' Compensation system (i.e. suffering an on-the-job injury, regardless of whether a Workers' Compensation claim is filed)
- Taking medical leave protected under the Oregon Family Leave Act
- “Whistleblowing” activity (reporting criminal activity, filing a civil complaint, contacting an administrative agency, or reporting misconduct by public employer)
- (Some city and county ordinances) Sexual orientation, gender identity
- Marital status or family relationship
- Patient abuse reporting
- Opposing unlawful employment practices
Certain additional rights arise when an employee has filed a Workers' Compensation claim which has been accepted.
Oregon law also requires that employers provide reasonable accommodation for disabilities and for religious beliefs.
Oregon law also prohibits employers from prohibiting use of lawful tobacco products outside of work, and from using polygraph or other lie-detector tests in employment applications.
The list above is a brief summary, and is not comprehensive or exclusive. For specific information about what Oregon law requires and protects, see the Oregon Revised Statutes and Administrative Rules, available at our website, or review the list of protected classes available on our Website at: http://egov.oregon.gov/BOLI/CRD/C_Crprotoc.shtml#protected
Responding to a Complaint
If a complaint is filed against you, you will receive a copy of the complaint, and a notice of the filing. You are the “Respondent,” and the individual filing the complaint is the “Complainant.” The notice informs you that you must respond to the complaint within 14 days. The notice also indicates the name and telephone number to contact if you have questions.
Failure to provide a response within the time provided may result in a finding based only on the information provided by the Complainant, therefore you are encouraged to provide as much information as you have within 14 days.
Your response (“position statement”) should address each of the claims separately. If you have documentation or witness statements supporting the response in your position statement, you may wish to provide those at the same time.
Occasionally, through the course of investigation, it may be discovered that an incorrect statute was cited, the Respondent was incorrectly named or additional Respondent(s) should be named, or some other error was made at filing. These errors can be corrected by “amendment” to the original complaint, which is done by the Bureau. This amendment can occur any time up to the day the case closes.
You will receive a copy of the amended complaint, along with a notice explaining whether a response is necessary.
Do I need an Attorney?
Legal assistance is not required. The investigator is looking for facts, not legal arguments.
However, you may wish to discuss the legal issues with an attorney as the investigation progresses, and/or to seek assistance in providing your response. Please be aware that the 14-day deadline for response will not be extended in order for you to seek legal counsel, or in order for your attorney to investigate the claims before making a response. You are responsible for collecting the information and providing a response to the Bureau within the time allotted.
Communication with the Investigator
At any time after submitting your position statement, you may contact the Investigator assigned to the case to provide further information and to ask questions.
After receipt of your position statement, the Investigator may contact you to set up interviews, request more information or documentation, or to discuss settlement options.
You are obligated to cooperate with the investigation. If you require a subpoena before complying with a request for information, please let the Investigator know immediately upon receipt of the request.
You have the right to have a representative present for any interviews of current, supervisory employees.
At any time, you may make a no-fault settlement offer to close the case. However, an offer to discuss settlement will not automatically suspend your obligation to provide a position statement or respond to other requests for information.
If the case is transferred to another Investigator, you will receive notice of the new Investigator’s name and contact information.
The Investigator is charged with investigating whether there is substantial evidence of an unlawful practice. The Investigator will need to:
- Look at documents (for example, sales or rental records, personnel files, attendance records, requests for medical leave, documentation regarding disabilities, records of health and safety complaints and investigations, notes from managerial meetings, correspondence with the Complainant, employee handbooks, etc.); and
- Speak to witnesses (customers, co-workers, supervisors, and anyone else who may have access to information about the claims).
Substantial evidence is defined as evidence that would lead a reasonable person to believe the Complainant’s claims are true.
Courts and the Bureau’s contested case hearing forum require more than substantial evidence; therefore a finding by the Bureau does not guarantee the Complainant would be successful if the Complainant filed the same claim(s) in court or if the Bureau took the case to a contested case hearing.
If the Investigator does not find substantial evidence, the case will be dismissed, and you will receive notice of the dismissal.
Please be aware that a dismissal does not necessarily mean the Complainant’s claims have no merit, as there may be additional evidence the Investigator did not discover, and/or other legal claims over which the Bureau has no jurisdiction.
At any time before the Investigator has made a determination, the Investigator can facilitate settlement, called “Conciliation.” Settlement may include:
- Reinstatement of employment
- Neutral or positive letter of reference
- Removal of discipline from personnel file
- Lost wages since termination of employment
- Costs incurred because of loss of employment
- Compensation for emotional distress
Settlement is not an admission of wrongdoing, and may simply be the most expeditious method of bringing the issues to a close.
The Investigator cannot give you or the Complainant legal advice regarding settlement, but can inform the parties about the types of settlements that have been made historically on the claims at issue, and can discuss the pros and cons of settlement versus further investigation or litigation.
If the Investigator finds substantial evidence that an unlawful practice has occurred, the parties will again be invited to participate in Conciliation, with a manager facilitating.
A Conciliation Agreement, to which the Bureau is a party, releases all claims under investigation, so that the Complainant will not be able to file the same claims in court. A Conciliation Agreement cannot include clauses regarding confidentiality, or a release of other claims.
The Bureau will enforce Conciliation Agreements in the event any party does not comply.
There is no appeal from an investigative finding, as it is not a final adjudication on the merits.
If an Investigator determines there is substantial evidence of an unlawful practice, and Conciliation has failed or been rejected by either party, the Civil Rights Division may refer the case to the Bureau’s Hearings Unit to be assigned to a Case Presenter who will determine whether there appears to be a preponderance of evidence to support the violations found by the Division.
If the Hearings Unit accepts the case, the Case Presenter will draft Formal Charges which will be issued by the Administrator of the Civil Rights Division. Further investigation will take place, and the participants (the Bureau and Respondent) have discovery rights, as in court litigation. The Bureau Administrative Law Judge (ALJ) assigned to the case will order the participants to file Case Summaries. The participants may also file motions, and settlement negotiations may continue during this pre-hearing period.
The hearing is a trial-like proceeding, presided over by the ALJ. After the hearing record closes, the ALJ will issue a Proposed Order, to which the respondent and the agency may submit written exceptions. The ALJ will then draft a Final Order for the approval of the Commissioner. If the Commissioner finds by a preponderance of the evidence that the violations charged were committed, the Commissioner’s Final Order will order the respondent to cease and desist from further unlawful conduct, and may order any of the remedies listed above under “Settlement.” If the Commissioner does not find by a preponderance of evidence that violations were committed, the Commissioner will dismiss the Formal Charges.
A Final Order may be appealed by the Respondent to the Oregon Court of Appeals.
Upon dismissal, the Complainant will be notified that the Complainant may file the same claims in court within 90 days after the dismissal.
If the case is not dismissed, the Complainant will receive a notice of right to file suit at the one year anniversary of the filing date.
At any time up to dismissal or 90 days after the one year anniversary of filing the complaint (whichever comes first), a Complainant may withdraw the complaint from the Bureau and file a complaint in court.
If a complaint is filed in court alleging the same matters as those in the complaint filed with the Bureau, the Bureau no longer has jurisdiction over the case.
Access to the File
Oregon public records laws prohibit the Bureau from releasing any portion of the file, other than the original complaint, until the case is closed. That means the investigator will not be able to send you copies of witness interviews or other documents obtained during the investigation. After closure, you will be able request a copy of the file, for a copying fee.
Certain information that is exempt from disclosure under public records law, such as social security numbers and medical information, will remain confidential even after closure, and will be removed prior to copying the file.
It is unlawful to discriminate against an individual because the individual has filed a complaint with the Bureau. Discrimination may take the form of demotion, lack of promotion, refusal to hire, poor work assignments, unwarranted criticism or discipline, or termination.