OAR 839-005-0206: Discrimination Theories: Housing

(1) For the purposes of housing discrimination complaints under ORS 659A.145 or 659A.421 or discrimination complaints under the federal Fair Housing Act (42 U.S.C. §3601–3617) an aggrieved person need not be a member of a protected class in order to file a complaint of housing discrimination. (2) Substantial evidence of intentional unlawful discrimination exists if the division's investigation reveals reasonable cause for the commissioner to believe the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in circuit court under one of the following theories: (a) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because of that individual’s membership in a protected class. (b) Different or Unequal Treatment Theory: The respondent treats members of a protected class differently than others who are not members of that protected class. When the respondent makes this differentiation because of the individual’s protected class and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment: (A) There must be substantial evidence that the individual was harmed or was about to be harmed by the action of the respondent under circumstances that make it appear that the respondent treated the individual differently than comparably situated individuals who were not members of the individual’s protected class. Substantial evidence of discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support that protected class membership was a motivating factor for the respondent’s alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of discrimination exists. (i) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination. (ii) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent’s action, but the division finds the individual’s protected class membership was also a substantial factor in the respondent’s action, the division will determine there is substantial evidence of unlawful discrimination. (B) The aggrieved person at all times has the burden of proving that the individual’s protected class was the motivating factor for the respondent’s unlawful action. (3) Adverse Impact Discrimination in Housing: (a) For the purposes of interpreting ORS 90.390, a court or the commissioner may find that a person has violated or is going to violate 659A.145 or 659A.421 if: (A) The person applies a facially neutral housing policy to a member of a protected class; (B) Application of the policy adversely impacts members of the protected class to a greater extent than the policy impacts persons generally. (b) In determining under subsection (a) of this section whether a violation has occurred or will occur and, if it is determined that a violation has occurred or will occur, what relief should be granted, a court or the commissioner will consider: (A) The significance of the adverse impact on the protected class; (B) The importance and necessity of any business purpose for the facially neutral housing policy; and (C) The availability of less discriminatory alternatives for achieving the business purpose for the facially neutral housing policy. (4) As used in enforcing ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. §3601–3617), harassment on the basis of a protected class is an unlawful practice in housing when: (a) Conduct of a verbal or physical nature relating to protected classes is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (2) of this rule is shown; and (A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of creating an intimidating, hostile, or offensive environment; or (B) Submission to such conduct is made either explicitly or implicitly a term or condition of housing; or (C) Submission to or rejection of such conduct is used as the basis for housing decisions affecting that individual. (b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive environment is whether a reasonable person in the circumstances of the individual against whom the harassment is directed would so perceive it. (5) Tenant-on-tenant harassment: A housing provider is liable for a resident’s harassment of another resident when the housing provider knew or should have known of the conduct, unless the housing provider took immediate and appropriate corrective action. (6) Harassment by Employees or Agents: A housing provider is liable for harassment of a resident by the housing provider’s employees or agents when the housing provider knew or should have known of the conduct, unless the housing provider took immediate and appropriate corrective action. (7) Discrimination based on disability may involve intentional discrimination, including harassment, or discrimination that need not be intentional, including adverse impact, or the failure to permit reasonable modifications, the refusal to make reasonable accommodations or the failure to design and construct covered buildings under applicable rules. To be protected from discrimination based on disability, an individual must have a disability, as described in ORS 659A.104 and the relevant rules. Reasonable accommodation in real property transactions is covered by 659A.145 and OAR 839-005-0220. Reasonable modifications in housing and the design and construction of covered buildings are covered by ORS 659A.145. Claims of disability discrimination brought under federal housing law are defined under that law.