What does "Opposing" Mean?
Oregon Retaliatory Termination: What does it take to “oppose” an unlawful practice?
Oregon employees were discussing their unhappy working conditions. One of the men was afraid to file a workers’ compensation claim. The other urged, “Just get a lawyer.” The next day, the one employee filed a workers’ compensation claim. The next day after that, the employer fired both of them.
Did the man who said, “get a lawyer” have a claim for retaliatory discharge? Yes, I believed. Here’s a portion of my brief on the topic.
ORS 659A.030(1)(f) prohibits discrimination based upon the opposition to unlawful practices. It prohibits:
[A]ny person to discharge. . . or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so. [emphasis added]
OAR 839-005-0033 interprets the above provision as follows:
An employer will be found to have unlawfully retaliated against an employee if:
(a) The employee has engaged in protected activity by:
(A) Explicitly or implicitly opposing an unlawful practice or what the employee reasonably believed to be an unlawful practice, or
(B) Filing a charge, testifying, or assisting in an investigation, proceeding, or lawsuit under ORS 659A, or attempting to do so;
(b) The employer has subjected the employee to any adverse treatment...; and
(c) There is a causal connection between the protected activity and the adverse treatment. [emphasis added]
Plaintiffs “can prevail on a retaliation claim by establishing that the defendant retaliated against [him] for opposing claimed discriminatory practices even if the practices were not, in fact, discriminatory.” Flug v. University of Oregon, 170 Or App 660, 680 13 P.3d 544 (2000). To constitute opposition, an employee need not utter any “magic words.” Kitchen v. WSCO Petroleum Corp., 481 F Supp 2d 1136, 1145 (D Or 2007) (citation omitted). Threats to get a lawyer or to sue are considered protected conduct under Title VII, and Title VII precedents are instructive to Oregon courts interpreting Oregon law. See, e.g., Jones v. Yonkers Public Schools, 326 F Supp 2d 536 (SD NY 2004) (“I will get me a lawyer and I will sue him.”); see, A.L.P. Inc. v. BOLI, Or App, 984 P23 883, 883 (1999) (noting that federal law applying Title VII is instructive when interpreting ORS 659A.030).
If you think an Oregon employer wrongfully terminated you in retaliation for engaging in protected activity and you’d like to talk with an Oregon attorney, then please feel free to call me at 503-665-4234.