OAR 839-005-0030: Sexual Harassment in Employment

(1) Sexual harassment is unlawful discrimination on the basis of sex and includes the following types of conduct: (a) Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature when such conduct is directed toward an individual because of that individual's sex and: (A) Submission to such conduct is made either explicitly or implicitly a term or condition of employment; or (B) Submission to or rejection of such conduct is used as the basis for employment decisions affecting that individual. (b) Any unwelcome verbal or physical conduct that is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with work performance or creating a hostile, intimidating or offensive working environment. (2) The standard for determining whether harassment based on an individual's sex is sufficiently severe or pervasive to create a hostile, intimidating or offensive working environment is whether a reasonable person in the circumstances of the complaining individual would so perceive it. (3) Employer proxy: An employer is liable for harassment when the harasser's rank is sufficiently high that the harasser is the employer's proxy, for example, the respondent's president, owner, partner or corporate officer. (4) Harassment by Supervisor plus Tangible Employment Action: An employer is liable for sexual harassment by a supervisor with immediate or successively higher authority over an individual when the harassment results in a tangible employment action that the supervisor takes or causes to be taken against that individual. A tangible employment action includes but is not limited to the following: (a) Terminating employment, including constructive discharge; (b) Failing to hire; (c) Failing to promote; or (d) Changing a term or condition of employment, such as work assignment, work schedule, compensation or benefits or making a decision that causes a significant change in an employment benefit. (5) Harassment by Supervisor, No Tangible Employment Action: When sexual harassment by a supervisor with immediate or successively higher authority over an individual is found to have occurred, but no tangible employment action was taken, the employer is liable if: (a) The employer knew of the harassment, unless the employer took immediate and appropriate corrective action. (b) The employer should have known of the harassment. The division will find that the employer should have known of the harassment unless the employer can demonstrate: (A) That the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (B) That the aggrieved person unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. (6) Harassment by Co-Workers or Agents: An employer is liable for sexual harassment by the employer's employees or agents who do not have immediate or successively higher authority over the aggrieved person when the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action. (7) Harassment by Non-Employees: An employer is liable for sexual harassment by non-employees in the workplace when the employer or the employer's agents knew or should have known of the conduct unless the employer took immediate and appropriate corrective action. In reviewing such cases the division will consider the extent of the employer's control and any legal responsibility the employer may have with respect to the conduct of such non-employees. (8)(a) As used in this rule, “appropriate corrective action” and “promptly correcting any harassing behavior" means that an employer: (A) Intervenes immediately with actions reasonably designed to effectively halt harassing behavior; (B) Conducts a prompt and adequate investigation and ascertains the extent of harassing behavior; (C) Takes appropriate remedial measures proportionate to the seriousness of the harassing behavior; (D) Places no burden, or makes every reasonable effort to minimize any burden placed, on the reporting employee or aggrieved party; (E) Does not retaliate against the reporting employee, the aggrieved party or a participant in the investigation; and (F) Takes steps that are reasonably calculated to prevent retaliation and future harassment. (b) The success or failure of corrective action in stopping future harassment is relevant, but not dispositive, as to employer liability. (c) The reasonableness of an employer’s actions under this subsection depends on the particular facts and circumstances at the time the actions are taken. (9) Withdrawn Consent: An employer is liable for sexual harassment of an individual by the employer's supervisory or non-supervisory employees, agents or non-employees, even if the acts complained of were of a kind previously consented to by the aggrieved person, if the employer knew or should have known that the aggrieved person had withdrawn consent to the offensive conduct. (10) When employment opportunities or benefits are granted because of an individual's submission to an employer's sexual advances, requests for sexual favors, or other sexual harassment, the employer is liable for unlawful sex discrimination against other individuals who were qualified for but denied that opportunity or benefit.