SB 851 expands lawsuits against employers

In Committee
Public Hearing 03/28/2023 8:00am   HR B
Status (overview) of bill:
Committee assigned to bill:

This bill is a placeholder as a study to be amended as a full blown policy.

SB 851 would expand lawsuits against employers for hostile work environments in a way that is
duplicative of remedies that are already available to employees. Employees who experience
discrimination in the workplace may seek a remedy under many federal laws including, but not
limited to, Title 7 of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and
the Family and Medical Leave Act (FMLA). Under state law, employees may already seek a
remedy for discrimination under ORS Chapter 659A and for workplace bullying by filing lawsuits for intentional inflection of emotion distress. The remedy provided by SB 851 is not only
duplicative of remedies already available under federal and state law, but by expanding lawsuits
against employers as it does, SB 851 could have the unintended consequence of diluting and
diminishing the harm suffered by the victims protected by those statutes.

A long-held principle in employment law is that courts should not act as super personnel
departments tasked with reviewing the merits of a given employment decision, except for when
the decision involves discrimination. SB 851 would reject that principle and would make Oregon the first state where employers would face lawsuits over demotions, unfavorable reassignments, and when an employee does not receive a desired promotion. Under SB 851, employers would also face lawsuits when disagreements arise between employees. In each situation, an employee
would not need to claim or prove the employer acted in a discriminatory manner or, in some
cases, that the employer acted at all. This is a substantial change from current employment law


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